Languages

Available In

Summary

If I took a lot of condoms, they would arrest me. If I took
a few or only one, I would run out and not be able to protect myself. How many
times have I had unprotected sex because I was afraid of carrying condoms? Many
times. –Anastasia L., sex worker, New York City, March 22, 2012

Felicia C. is a sex worker in the Columbia Heights
neighborhood of Washington, DC. When Human Rights Watch met Felicia, it was 2
a.m. on a cold and windy morning. Felicia ran over to an outreach van to get a
warm cup of coffee from the volunteers. She took the “bad date”
sheet that warns of recent attacks on sex workers, and was offered some
condoms. She would not take more than two. When asked why, she said she was
afraid to be harassed by the police. She said that a month earlier, she had
been stopped and questioned by police and told to throw her condoms into the
garbage. She said she’d held her ground and refused, but she didn’t
want to be harassed again.

Felicia’s story is not unique. In four of the
nation’s major cities—New York, Washington, DC, Los Angeles, and
San Francisco—police stop, search, and arrest sex workers using condoms
as evidence to support prostitution charges. For many sex workers, particularly
transgender women, arrest means facing degrading treatment and abuse at the
hands of the police. For immigrants, arrest for prostitution offenses can mean
detention and removal from the United States. Some women told Human Rights
Watch that they continued to carry condoms despite the harsh consequences. For
others, fear of arrest overwhelmed their need to protect themselves from HIV,
other sexually transmitted diseases and pregnancy.

Alexa L., a New York City sex worker, said, “I use
condoms. I take a lot of care of myself. But I have not used them before
because I was afraid of carrying them. I am very worried about my
health.” Carol F., a sex worker in Los Angeles who had been arrested
partly on the basis of carrying condoms, had a similar story: “After the
arrest, I was always scared…There were times when I didn’t have a
condom when I needed one, and I used a plastic bag.”

Prostitution—the exchange of sex for money or other
consideration—is illegal in 49 states and in all of the cities addressed
in this report. Law enforcement agencies in these jurisdictions are charged
with enforcing laws, including those relating to prostitution. Enforcement,
however, must be compatible with international human rights law and governments
should ensure that police policies and practices do not conflict with equally
important public health policy imperatives, including those designed to curb
the HIV epidemic.

Police stops and searches for condoms are often a result of
profiling, a practice of targeting individuals as suspected offenders for who
they are, what they are wearing and where they are standing, rather than on the
basis of any observed illegal activity. In New York, Washington, DC, and Los
Angeles, many people, particularly members of the transgender community, told
Human Rights Watch they were stopped and searched for condoms while walking
home from school, going to the grocery store, and waiting for the bus. Vague
loitering laws invite interference with the right to liberty and security of
the person, permitting police to consider a wide range of behavior and other
factors suspicious, including possession of condoms and being
“known” as a sex worker. The anti-prostitution loitering laws in
New York, California, and Washington, DC are inconsistent with human rights
principles prohibiting detention or punishment based on identity or status and
should be reformed or repealed.

Sex workers in New York, Washington, DC, and Los Angeles
described abusive and unlawful police behavior ranging from verbal harassment
to public humiliation to extortion for sex, both in and out of detention
settings. Transgender women described being “defaced” by police who
removed their wigs, threw them on the ground, and stepped on them. Police
subjected transgender women to a constant barrage of vulgar insults, mockery,
and disrespect. Most disturbing were reports in both New York and Los Angeles
that some police regularly demanded sex in order to drop charges or coerced
women into sex while in detention. Few of these women filed complaints, fearing
further abuse and having lost faith in police to respond with fairness and
integrity. Police officials in each of these cities should take action to
increase accountability, restore community trust, and end an unacceptable cycle
of impunity for human rights abuses against sex workers and transgender
persons.

Human Rights Watch interviewed more than 300 persons for
this report, which focuses on police use of condoms as evidence to enforce
prostitution and sex trafficking laws, as part of an investigation into
barriers to effective HIV prevention for sex workers in the four cities covered
by this report. Those interviewed included nearly 200 sex workers and former
sex workers as well as outreach workers, advocates, lawyers, police officers,
district attorneys, and public health officials. In New York, Washington, DC,
and Los Angeles our investigation focused on complaints of police using condoms
as evidence while targeting sex workers on the street. In San Francisco,
condoms were used as evidence for street enforcement to some extent, with
police photographing rather than confiscating condoms, in what appeared to be a
dubious nod to public health concerns. In San Francisco, much of the
anti-prostitution enforcement using condoms as evidence targeted women working
in businesses such as erotic dance clubs, massage businesses, and a nightclub
with transgender clientele.

Police use of condoms as evidence of prostitution has the
same effect everywhere: despite millions of dollars spent on promoting and
distributing condoms as an effective method of HIV prevention, groups most at
risk of infection—sex workers, transgender women, and lesbian, gay,
bisexual, and transgender (LGBT) youth—are afraid to carry them and
therefore engage in sex without protection as a result of police harassment.
Outreach workers and businesses are unable to distribute condoms freely and
without fear of harassment as well.

Sex workers and transgender women are highly vulnerable to
HIV infection as a result of many factors including stigma, social and physical
isolation, and economic deprivation. In San Francisco one of three transgender
women has HIV; in Los Angeles the Department of Health has identified HIV
prevention for transgender women as an “urgent” priority. It is not
surprising that those on the front lines are confused about the message city
governments are sending on condom use. Maria, a sex worker in Los Angeles
asked, “Why is the city giving me condoms when I can’t carry them
without going to jail?” Ironically, if Maria went to jail in Los Angeles
or any of the cities addressed in this report she could get a condom, as
condoms are available in detention settings for prevention of HIV and other
sexually transmitted diseases.

Police and prosecutors defended the use of condoms as
evidence necessary to enforce prostitution and sex trafficking laws. However,
the use of any type of evidence must be determined by weighing the potential
harm that occurs from its use and the benefits provided. In legal systems
everywhere, categories of potentially relevant evidence are excluded as a
matter of public policy, with laws excluding testimony regarding a rape
victim’s sexual history providing but one of many examples. Law
enforcement efforts should not interfere with the right of anyone, including
sex workers, to protect their health. The value of condoms for HIV and disease
prevention far outweighs any utility in enforcement of anti-prostitution laws.

In the summer of 2012, Washington, DC will be hosting the
19th International AIDS Conference. As more than 30,000 delegates from all over
the world converge on the nation’s capital, the US response to the
epidemic will be in the spotlight. This is an extraordinary opportunity for the
city of Washington, DC as well as the cities of New York, Los Angeles, and San
Francisco to enact policies that protect those at risk of HIV and to eliminate
those that undermine HIV prevention such as the use of condoms as evidence of
prostitution.

Strong federal leadership is also needed. The US government
provides millions of dollars of funding to each city addressed in this report
to prevent HIV among groups at high risk of HIV infection. Condoms as evidence
of prostitution should be identified as a barrier to implementing the National
HIV/AIDS Strategy and federal, state, and municipal agencies should work
together toward its elimination. Most importantly, the US recently pledged at
the United Nations Human Rights Council to protect the human rights of sex
workers, a commitment that should begin without delay. A critical step towards
meeting this obligation would be to call for the end to the use of condoms as
evidence of prostitution, a policy that endangers the health and lives of sex
workers, transgender persons, LGBT youth, and all members of the community.

Key Recommendations

To the Police Departments and District Attorneys of New
York City, Washington, DC, Los Angeles, and San Francisco

Immediately cease using the possession of condoms as
evidence to arrest, question, or detain persons suspected of sex work, or
to support prosecution of prostitution and related offenses. Issue a
directive to all officers emphasizing the public health importance of
condoms for HIV prevention and sexual and reproductive health. Ensure that
officers are regularly trained on this protocol and held accountable for
any transgressions.

To the Legislatures of New York State and California and
the District of Columbia Council

Enact legislation prohibiting the possession of condoms as
evidence of prostitution and related offenses.

Reform or repeal overly broad laws prohibiting loitering
for purposes of prostitution as incompatible with human rights and US
constitutional standards.

To the United States Government

The Office of National AIDS Policy and the federal
agencies charged with implementing the National HIV/AIDS Strategy should:

Recognize that human rights abuses such as interference
with a means of HIV prevention are significant barriers to reducing HIV
among sex workers, transgender persons, LGBT youth, and other vulnerable
groups and prioritize structural interventions to address those abuses;

Ensure the inclusion of sex workers and transgender women
in the efforts of the Working Group on the Intersection of HIV/AIDS,
Violence against Women and Girls, and Gender-related Health Disparities;

Ensure that HIV research and surveillance data adequately
reflects the impact of HIV on sex workers and transgender persons;

Call upon states to prohibit the use of condoms as
evidence of prostitution and related offenses, and develop a plan to
provide guidance, technical assistance, and model legislation to
accomplish this objective.

The Department of Justice should investigate the treatment
by police of sex workers and transgender persons in New York City,
Washington, DC, and Los Angeles. The Department should provide ongoing
review, enforcement and oversight to ensure that policies and practices
comply with human rights and US constitutional standards.

Methodology

This report is based on research conducted in New York,
Washington, DC, San Francisco, and Los Angeles by a five-member team from the
Health and Human Rights Division of Human Rights Watch between October 2011 and
July 2012. Research began with inquiries to sex worker organizations and sex
worker advocates, transgender, harm reduction, and HIV advocates, and public
defenders in more than 15 cities throughout the United States about whether
police or prosecutors were using condoms as evidence of prostitution. From this
preliminary investigation New York, Washington, DC, Los Angeles, and San
Francisco emerged as cities consistently reporting the use of condoms as
evidence of prostitution.

Human Rights Watch interviewed an estimated 197 current and
former sex workers for the report, including 77 in New York and 40 in each of
the other cities. Interviews were conducted both individually and in groups, in
a variety of settings that included the offices of nongovernmental
organizations (NGOs) working with sex workers, outdoors as part of street
outreach shifts, in restaurants and other public spaces, in the offices of
Human Rights Watch, and on the telephone. It is difficult to ascertain an exact
number of sex workers interviewed in the course of conducting the research for
this report because not everyone self-identified as such and there was often
overlap among outreach workers, advocates, and others. The majority of sex
workers and former sex workers interviewed were female or transgender persons,
primarily transgender women.

All persons interviewed were informed of the purpose of the
interview, its voluntary nature, and the ways in which the information would be
used. All interviewees provided oral consent to be interviewed. Pseudonyms are
used for all current and former sex workers and others requesting anonymity in
order to protect their privacy, confidentiality, and safety.

Human Rights Watch also interviewed more than 110 outreach
workers, advocates, lawyers, public defenders, prosecutors, judges, public
health officials, and police officers in the four cities. Documents were
obtained through Freedom of Information Law and public record requests and
shared with Human Rights Watch from multiple sources, including the
Metropolitan Police Department of Washington, DC, the Legal Aid Society of New
York, and the San Francisco Human Rights Commission. All documents cited in the
report are publicly available or on file with Human Rights Watch.

Human Rights Watch sought the perspective of government
officials in each city including the police, prosecutors, and public health
officials. Official responses in each city are detailed in the Findings section
of the report.

Background

HIV continues to pose a major public health threat in the
United States, where 1.2 million people are living with HIV, with one in five
unaware of his or her infection. Approximately 50,000 people are newly infected with
HIV each year, with racial and ethnic minorities bearing a disproportionate
burden of the disease.[1] Thirty years into the epidemic, it is well established that interventions
targeted at individual behavior are insufficient without attention to social,
economic, legal, and other structural factors that influence vulnerability to
HIV.[2] Addressing the epidemic among vulnerable populations requires understanding the
risk environment in which they exist, and designing structural interventions in
response. As Kevin Fenton, director of the National Center for HIV/AIDS, Viral
Hepatitis, STD and TB Prevention of the US Centers for Disease Control and
Prevention (CDC), wrote,

Though individually based interventions have had some
success, it is clear that their success is substantially improved when HIV
prevention addresses broader structural factors such as poverty and wealth,
gender, age, policy, and power.[3]

Sex workers and transgender persons share many elements of
an environment that shapes their risk of acquiring HIV. These include physical,
social and cultural isolation, stigma, and a legal and policy environment that
criminalizes their behavior and often their status.[4]Transgender
persons, for example, face widespread discrimination, family rejection, stigma,
and poverty, factors that illuminate the limited data that exist regarding HIV
prevalence among this group. Transgender advocates recently released
“Injustice at Every Turn,” a survey of nearly 6,500 transgender
persons in the United States.[5] The
report indicated pervasive discrimination, a poverty level four times higher
than the general population, and twice the unemployment rate of non-transgender
people, often leaving sex work as the only option for survival. Each of these
factors was even more marked in transgender persons of color, as was
vulnerability to HIV and AIDS. Among those surveyed, the self-reported HIV
prevalence rate was four times higher than that in the US general population,
with rates for those who had engaged in sex work higher than 15 percent.[6]

The consequences of arrest are harsh for sex workers,
transgender women, and other LGBT people, who face high levels of abuse,
harassment, and violence in police custody and in prison.[7] Sex
workers who are immigrants have additional reason to fear arrest as the US
government targets “criminal aliens” for removal.[8] For
both documented and undocumented immigrants, prostitution and solicitation are
potential grounds for removal and inadmissibility under federal immigration
law.[9] As a “crime of moral turpitude,” a conviction for prostitution,
loitering with intent to commit prostitution, or solicitation can be grounds
for removal from the US, but there is also a separate provision that
establishes prostitution as a removable offense.[10] Under
this provision a criminal conviction for prostitution is not required for a
finding of inadmissibility, if immigration authorities determine on other
grounds that one has “engaged in prostitution.”[11] A
conviction of prostitution or a determination that one has engaged in
prostitution can render one inadmissible, meaning that those in the US cannot
return if they leave the country and may have difficulty adjusting their legal
status. These are also grounds that can trigger the mandatory detention requirements
of the immigration laws for both documented and undocumented immigrants.[12]

Condoms are a proven method of preventing transmission of
HIV and other sexually transmitted diseases, demonstrated to substantially
reduce the risk of HIV transmission and endorsed by international and US health
authorities as an essential component of HIV prevention programs.[13] In many jurisdictions, including the United States, condoms are provided as an
essential HIV prevention method among populations whose actions are
criminalized or for whom sex is prohibited such as prisoners.[14] Indeed, in each of the four cities addressed in this report, millions of
condoms are distributed by the public health department each year as part of
highly visible HIV prevention campaigns, and in each city, condoms are made
available to inmates of the city’s jails.[15]

Prostitution—defined as the exchange of sex for money
or other consideration—is illegal in 49 states in the US and is
prohibited in every city addressed in this report.[16] The
police are charged with enforcing laws, including laws against prostitution.
But enforcement must be consistent with human rights obligations, including the
rights to health, to liberty and security of the person, and to freedom from
cruel, inhuman, and degrading treatment. Governments can and do take measures
to ensure that the criminal laws do not impede human rights protection and
public health, most notably by promoting harm reduction programs for drug users
including syringe exchange and safe injection sites.[17] Each
of the cities addressed in this report has syringe exchange programs that
operate under exceptions to state drug paraphernalia laws. These programs are
aimed at promoting treatment of drug addiction and preventing the sharing of
needles, a mode of HIV transmission, by protecting drug users from police
action in specific situations. They reflect collaboration between affected
communities, law enforcement, and public health officials, an approach that
should be applied to the issue of condoms as evidence of prostitution.

Findings: Condoms as Evidence of
Prostitution in Four US Cities

New York City

HIV in New York City

New York City is the epicenter of the AIDS epidemic in the
United States, with more than 110,000 people living with HIV and an AIDS case
rate that is three times the national average. AIDS is the third-leading cause
of death for New Yorkers between the ages of 35 and 54. African-Americans bear
a disproportionate burden of HIV in New York, with an HIV diagnosis rate four
times that of whites. Though HIV historically affected mostly males in New
York, nearly a quarter of new HIV diagnoses are among women, with 92 percent of
these in African-American or Latina women.[18] Young men who have sex
with men, particularly young men of color, are increasingly at risk of HIV
infection. In 2009, for the first time, HIV diagnoses among men who have sex
with men aged 13 to 29 surpassed those among men 30 years and older.[19] Among transgender persons in New York City, there were 183 new HIV diagnoses
between 2006 and 2010. Most of these occurred among African-American or
Hispanic transgender women. Of the transgender women newly diagnosed with HIV,
eight percent reported having engaged in sex work, a figure likely to be low
given that it was based on the number of people who felt comfortable disclosing
this fact to a medical provider.[20]

A recent study in New York City among people who exchange
sex for money or other goods (a category broader than those who self-identify
as sex workers[21]) found
that 14 percent of the men and 10 percent of the women were HIV-positive.[22] This is dramatically higher than the 1.4 percent HIV prevalence in New York
City generally and the 0.6 percent prevalence in the United States overall.[23]

New York State and City have devoted enormous resources to
curbing the HIV epidemic, targeting prevention efforts to many of these
vulnerable populations. A cornerstone of these prevention efforts is promoting
universal access to condoms. The New York City Department of Health and Mental
Hygiene (DOHMH) expanded an already-existing condom distribution program in the
mid-1980s in response to the AIDS crisis, and in 2007 launched the New York
City Condom Campaign, the first condom to be branded by a municipality in the
United States. Within six months of the launch, the city’s condom
distribution increased to more than three million condoms per month in the five
boroughs (36 million per year). New York City currently distributes more than
40 million free condoms annually.[24] DOHMH states in its condom promotion materials, “It’s Your Right:
No one—not even a spouse or intimate partner—can take away your
right to use condoms, or your right to refuse sex.”[25]

Anti-Prostitution Enforcement in New York City

New York State law prohibits the offenses of “prostitution,”[26] a misdemeanor, and “loitering for the purpose of engaging in a
prostitution offense,” a violation (punishable only by a fine) and a
possible misdemeanor (punishable by a fine, jail time, or both).[27]Other prostitution-related offenses include patronizing prostitution,[28] promoting prostitution,[29] and sex trafficking.[30]

From January through November 2011 the New York City Police
Department (NYPD) made 4,054 arrests for prostitution-related offenses.[31] This included 1, 899 prostitution cases (targeting the alleged provider of sex)
and 1,192 arrests targeting alleged patrons of prostitutes. Six hundred and
nineteen arrests were made for “loitering for the purpose of engaging in
a prostitution offense.”[32]The vast majority of these arrests are disposed of without trial,
primarily through plea bargaining or proceeding under a conditional discharge,
usually requiring participation in a substance abuse or other
“diversion” program.[33]

In 2011, for example, there were five acquittals in New York
City for prostitution-related charges. Of cases showing a disposition, 85
percent showed “sentenced or sentence pending,” indicating a
judgment of guilt. One of three persons convicted spent time in jail for the
offense. In 2011 there were 35 arrests for sex trafficking in New York City
(see Tables 1 and 2 below).[34]

Table 1. Prostitution Related Arrests in New York City in
2011*

CHARGE

ARRESTS

PL
230.00

Prostitution

1,899

PL
230.04

Patronize
Prostitute – 3rd

1,188

PL
240.37

Loitering
for Prostitution

691

PL
230.20

Promoting
Prostitution – 4th

119

PL
230.25

Promoting
Prostitution – 3rd

92

PL
230.34

Sex
Trafficking

35

PL 230.40

Permitting Prostitution

10

PL 230.30

Promoting Prostitution – 2nd

9

PL 230.33

Compelling Prostitution

6

PL 230.06

Patronize Prostitute – 1st

3

PL 230.05

Patronize Prostitute – 2nd

1

PL 230.32

Promoting Prostitution – 1st

1

PL
230.03

Patronize
Prostitute – 4th

0

* as of 11-22-11. Source: DCJS, Computerized Criminal History system.

Table 1. Dispositions of Prostitution Related Arrests in New York City in 2011*

ARRESTS

Total Arrests

4,054

Dispositions
Reported

2,460

Open,
No Disposition Reported

1,594

Total Dispositions

2,460

Convicted:
Sentenced

2,053

Dismissed

228

DA
Declined to Prosecute

127

Convicted:
Sentence Pending

41

Acquitted

5

Other

4

Covered
by Another Case

2

Total Sentences

2,053

Conditional
Discharge

859

Fine

527

Jail

348

Time
Served

314

Probation

2

Other

2

Jail
and Probation

1

Prison

0

Unconditional
Discharge

0

* as of 11-22-11. Source: DCJS, Computerized Criminal History system.

Prosecutors have attempted to use condoms as evidence in
some of the few cases that proceeded to trial. Kate Mogulescu, a public
defender with the Legal Aid Society of New York, has spent the last two years
defending prostitution and loitering for purposes of prostitution cases in
Manhattan and serving as a consultant on prostitution trials in other boroughs.
Mogulescu said that in that time period, “Prosecutors tried to introduce
condoms in two of the ten cases that went to trial, and in both of those the
judge refused to admit them as evidence.”[35]

In a case tried by Mogulescu in June 2010 Judge Richard
Weinberg of the Criminal Court of the City of New York had this exchange with
the prosecutor:

Judge Weinberg: I don’t care about the condoms. This
is the 21st Century.

Prosecutor: The People would like to voice their objection.
This is circumstantial evidence of defendant’s intent.

Judge Weinberg: And every other woman and man who wants to
protect themselves in the age of AIDS.[36]

In New York “loitering for the purpose of engaging in
a prostitution offense” is defined as when a person “…remains
or wanders about in a public place and repeatedly beckons to, or repeatedly
stops, or repeatedly attempts to stop, or repeatedly attempts to engage
passers-by in conversation, or repeatedly stops or attempts to stop motor
vehicles, or repeatedly interferes with the free passage of other persons, for
the purpose of prostitution.”[37]The loitering for purposes of prostitution law has long been considered
unconstitutionally overbroad by civil liberties advocates in New York State. In
1978 it was challenged as too vague to provide adequate notice of what conduct
was illegal, a violation of the right to due process of law under the 5th and
14th Amendments, but the law was upheld by the New York Court of Appeals.[38] The Court specifically upheld the use of circumstantial evidence for the
loitering charge, including the location of the defendant in a
“known” prostitution zone, the officer’s prior arrests of
other people for prostitution in that location, and recognition of the
defendant as a previous prostitution offender.[39]

According to the New York Police Department Patrol Guide,
police officers are permitted to include the suspect’s location,
conversations, clothing, conduct, associates, and status as a “known
prostitute” in order to establish that someone is loitering for the
purpose of engaging in prostitution.[40]This and similar loitering laws are problematic from a human rights
perspective, in that they grant police wide latitude to engage in unjustified
interference with lawful activities short of actual solicitation. Such laws
enable arbitrary and preemptive arrests on the basis of profile or status, rather
than criminal conduct.[41]

Under federal and state law, police may stop an individual
on a reasonable suspicion of criminal activity.[42] Police may conduct a search if there is probable cause to believe that the
person committed a crime.[43] The
expansive grounds for suspicion under New York’s loitering for the
purposes of prostitution statute permit police to stop and search individuals
for a wide variety of reasons and it is during these searches that condoms may
be discovered and seized. Condoms may also be seized as evidence of
non-loitering prostitution charges such as those based on solicitation of an
undercover police officer or other grounds.[44] In
Brooklyn criminal courts “condoms” are one item listed as an option
as “additional evidence of prostitution” on forms filled out by
police officers in support of prostitution and loitering charges. On forms used
in Manhattan criminal court, officers have added condoms to the narrative as
“additional evidence” to support prostitution charges. Examples of
forms filed in Brooklyn and Manhattan criminal courts identifying condoms as
evidence of prostitution are included in Appendix A.

Condoms as Evidence of Prostitution

Human Rights Watch interviewed sex workers in Manhattan,
Queens, Brooklyn, and the Bronx. In each borough sex workers told Human Rights
Watch that they were frequently stopped by police and searched. In many
instances police seized the condoms and routinely commented on the number of
condoms they were carrying when condoms were found as part of a search.

Police Stops and Seizure of Condoms

Tanya B., a Latina transgender sex worker in Queens, stated,

I was stopped and threatened. The cops said ‘empty
your purse.’ I cleared out everything but left the condoms at the
bottom—I got caught. They said ‘how come you didn’t pull out
the condoms? I can arrest you because of this.’ I said ‘it’s
not a problem, I have no weapons, no drugs’ and the police officer said
‘next time I will arrest you because this is evidence you are a
prostitute.’[45]

Pam G., a woman who has Multiple Sclerosis and is a sex worker, told Human Rights Watch of her experience in Coney Island,
Brooklyn:

The cops say, ‘what are you carrying all those
condoms for? We could arrest you just for this.’ They use it to push the
issue of searching me. It happens all the time around here. I may be carrying
eight condoms. If you have more than three or four on you, they will take them,
they will be disrespectful.[46]

I have been picked up because I have condoms, it happened
to me. I had five. I was by McDonald’s, I was walking down the street, he
[policeman] went into my pocket, I always have them in my pocket.[47]

Misinformation about the Legality of Condoms

For some sex workers the use of condoms as evidence of
prostitution leads to confusion about how many they can carry and a perception
that condoms are illegal. Sienna Baskin is a lawyer and co-director of the
Urban Justice Center’s Sex Worker Project. Baskin said that sex workers frequently
ask, “How many condoms it is legal to carry in New York City?”
Baskin informs them that it is legal to carry as many as one wishes.[48]

Lynn A. had just moved to New York from the Midwest. She
said, “I didn’t know this was happening at all, I didn’t know
carrying a condom was a crime. I just came from Minnesota and in Minnesota they
give out condoms.”[49]

Police Profiling as Sex Workers

Many people complained of being stopped, searched, or
arrested while engaging in legal activity, many just while walking in their own
neighborhoods. Along with appearance, being known to officers as a sex worker,
or being in an area “known” for prostitution activity, condoms
could lead to women being identified by police as sex workers. Lola N., an
African-American sex worker in Hunt’s Point, Bronx said,

One day I was walking with a boyfriend and a vice cop
pulled up, jumped out. My boyfriend, he had weed on him and they let him go.
They arrested me. They found condoms on me. They say I was arrested for
solicitation.[50]

Many members of the Queens Latina transgender community
experienced being stopped and searched by the police on suspicion of
prostitution while walking in their own neighborhoods. Alexa L., a transgender
woman from Mexico, said,

Eight days ago I wasn’t working because I was sick. I
left my house to get a coffee, and had two condoms in my pocket. The police
stopped me and said ‘what are you doing?’ I said I was getting
coffee. They searched me and found two condoms. They asked ‘what are you
doing with two condoms, what are they for?’ I said they were for
protection. They took the condoms. I couldn’t get coffee, I was so
scared. I felt very bad. I’m not a delinquent, I didn’t steal. When
they searched me and found them, I was shaking, I was so scared.[51]

Selena T., told Human Rights Watch,

They have emptied out my whole purse. The cops assume
I’m a prostitute, they stop me, open my purse, check if I have a certain
number of condoms. They are always looking for condoms when they open your
purse.[52]

Yanira C. was at the movies before she was arrested:

I was with a friend on 82nd and Roosevelt. We came out of a
movie theater. Some cops in a van came over, said I was being arrested. The
cops said I was too beautiful. The charge was that I had more than one condom
in my bag. They locked me up for two days for solicitation and
prostitution…they said I had condoms, it was on the report.[53]

Mona M. is from El Salvador and has lived in Jackson
Heights, Queens for ten years. She is a transgender woman who takes it upon herself
to provide condoms to other sex workers. She said, “To the police, all
transgenders are prostitutes.”[54]

Juan David Gastolomendo is executive director of the Latino
Commission on AIDS, a nongovernmental organization providing support and
outreach services to Latina transgender women in Queens. According to
Gastolomendo their clients are regularly targeted as prostitutes by law
enforcement:

The false arrest is mainly on loitering charges, including
loitering for prostitution. It ends up boiling down to being a trans woman in a
place where known sex work is happening. The arrest is based on the
client’s identity and where the arrest happens. These are places where
prostitution happens, but they are also places where people socialize.[55]

Police Interference with Outreach Activities

Several women who often engaged in peer outreach and
education described how police interfered with these activities. Anna E., a
32-year-old former sex worker from Mexico, said,

I went back to the clubs in Jackson Heights, not to be a
prostitute, but just to go back to the clubs. I can’t walk on Roosevelt
Avenue between 72nd Street and 82nd Street because the police are there and
they immediately think I’m a prostitute. I can’t carry condoms like
I used to and give them to my friends. I have a terror about it. I am panicked
especially since now I have a job as a stylist. I feel I can’t give out
condoms to my friends because I am afraid to carry them.[56]

Mona M. sits in a neighborhood restaurant at a regular time
so that she can provide condoms to women who are afraid to carry condoms when
they are working:

The majority have fear, they don’t carry
condoms…. I’m an outreach worker. They know Mona will be in the
cafe. They will only come when they have a client, get one condom, then leave
with the client. For me it’s a risk to have the condoms in my purse. But
I’ve worked as an outreach worker, and I feel obligated to carry condoms
because if someone comes up and asks me, and I don’t have one, what are
they going to do?[57]

Police also have harassed outreach workers from service
organizations despite workers’ explanations and presentation of
identification issued by their employers.[58] In Queens and other
boroughs the Latino Commission on AIDS gives each outreach worker a printed
form to carry explaining to police why they are carrying and distributing
condoms in the neighborhood. A copy of this form is included as Appendix B.

Immigration Consequences of Arrest for Prostitution

The immigration laws put undocumented sex workers in a serious
dilemma. According to public defenders in New York, they are acutely aware of
the untenable situation their clients face and often must advise their clients
to plead guilty to an offense in order to be released from custody. They want
to avoid going to Rikers Island Correctional Facility where federal Immigration
and Customs Enforcement (ICE) agents screened arrivals for immigration
violations.[59] As Barbie M., an undocumented sex worker, described it, “I pled guilty to
prostitution, my lawyer said to plead guilty, I had no other option because if
I didn’t plead guilty I would stay in jail and be deported.”[60]

However, as of May 15, 2012, avoidance of immigration
screening will no longer be possible, as ICE began to implement the Secure
Communities Program. Under this program the fingerprints of all persons
arrested by local police are sent to federal immigration authorities for review
to determine whether they should be detained for immigration purposes.[61] For sex workers who are undocumented and transgender this development is
particularly disturbing as deportation can mean a return to countries where
they have endured life-threatening abuse and discrimination. Juan David
Gastolomendo of the Latino Commission on AIDS said,

We see mainly false arrest, profiling. Latino immigrants,
trans, MSM. This has immigration implications, which is a major concern. They
will be deported to the situations they were fleeing from. The trouble with
this is that a lot of individuals who are deported could file for asylum if we
had the resources for this.[62]

Fear of Carrying Condoms as a Result of Police
Action

Many sex workers reported that they continued to carry
condoms despite fear of arrest. For others, however, fear of arrest, jail time,
and conviction on prostitution charges overcame their need to protect
themselves from HIV and other sexually transmitted diseases. Anna E. said,

Am I afraid to carry condoms? Yes I was for a long time.
When I was working on the street, I felt like I could only carry two or three,
not a lot when I went out…[63]

Nola B. explained that transgender sex workers may need more
than one condom during an exchange:

For sex workers who are transgender, sometimes the
transgender has to put on a condom, so does the client. So you need two. Or
they could break. One to two is not enough.[64]

Outreach workers who provide harm reduction services on the
street confirmed that sex workers were often reluctant to take condoms for fear
of arrest. An outreach worker in the Bronx and East Harlem said,

We usually hand out two packs [of condoms] at a time.
I’ve had girls give one pack back and say ‘we’ll
share.’ Sometimes they are not carrying anything to carry them in, and
with them getting stopped so often, they don’t want to have a lot on
them.[65]

Lorena Borjas, an outreach worker for the Latino Commission
on AIDS in the Queens Latina transgender community gave a similar testimony:

The police are arresting a lot of people in Jackson
Heights. The girls are afraid to carry condoms…The Department of Health
says protect yourself, you see their advertisements on TV, on the radio, on the
subway. But the police in Queens are either not well trained, or don’t
know better that they are doing things wrong. They are arresting girls and
using condoms as evidence.[66]

Mito Miller, an outreach worker in the West Village in
Manhattan told Human Rights Watch,

I have never had any young men afraid to take condoms, only
black and Latina trans women who have refused to take them. I’ve had
people not take condoms, people who do go through a rigorous routine of hiding
them. They were wrapping them in paper, so they were gift-wrapped…They
took a couple, but consciously limit themselves, even though they know they are
working and would need more, because they couldn’t hide them.[67]

Several sex workers stated that because of police practices
they had no choice but to engage in sex work without condoms as a result. Alexa
L. said,

I use condoms. I take a lot of care of myself. But the
police affect our ability to carry them. Sometimes I’m afraid and have
not used them. I am very worried about my health.[68]

Tanya B. said she runs out of condoms but has to keep
working:

[Police action] affects my ability to carry condoms. A lot
of girls carry one to two condoms but some nights are very successful and you
have to do the last one [client] without one.[69]

Anastasia L., a transgender woman from Mexico who did sex
work in Queens until 2007, said,

If I took a lot of condoms, they would arrest me. If I took
few or only one, I would run out and not be able to protect myself. How many
times have I had unprotected sex because I was afraid of carrying condoms? Many
times.[70]

Police Abuse, Harassment, and Misconduct

Sex workers reported that whether condoms played a role or
not, interaction with police frequently was accompanied by verbal and physical
abuse. This was particularly true for transgender women, as reported by
Victoria D.:

All my arrests always came from just walking on the street,
coming out of a club, or just because a cop identified me as transgender. They
would always look for condoms. They don’t care about you, they take your
purse, throw it on their car, your stuff they throw it on the floor, they pat
frisk you, they ask if you have fake boobs, take them off right there, if you
have a wig, take it off. It’s humiliating. Right there in the street,
they take your identity right there. When they find condoms, they say
‘what are these for… how many dicks did you suck today? How much
money did you make today?’[71]

Alexa L. told Human Rights Watch,

Five months ago, I was going to see my partner, my husband.
A police van stopped and four police officers came out. They stopped me, put me
in handcuffs, and asked what I was doing. I said I was going to see my partner,
and they said I was lying, that I was prostituting myself. They pushed me
against the wall and I scraped my knee and my cell phone fell down. They were
saying …‘fuck you gay’… That time they arrested me and
I had one condom in my breast. They found it and took it and threw it away.[72]

Transgender women described abuse by law enforcement
officers in Queens Central Booking, The “Tombs” detention complex
in Manhattan and at Rikers Island Correctional Facility. Tara A. was in Queens
Central Booking in April of 2011:

I spent 24 hours in Central Booking in Queens. Just 24
hours in hell, the psychological side is affected because you have to go in an
area with men. It’s not just being arrested…In front of me men were
insulting me, saying ‘faggot.’ I felt discriminated when they took
my fingerprints, they put on gloves, like they were disgusted. They made fun of
me, the police officers. Sometimes I’d walk by the men and they’d
say ‘you’re pretty.’ The police officer would say
‘she’s not a woman, she’s a man.’[73]

Transgender women described many incidents, including
extortion for sex, which, if perpetrated by policemen, would constitute
criminal activity or misconduct. Some occurred several years ago but there were
recent incidents as well. Brenda D. told Human Rights Watch about an incident
in December 2011:

I went into a car with a person. He said he was a police
officer and said ‘if you help me I’ll help you.’ He said he
wanted oral sex. He showed me a badge. He said if I didn’t have oral sex
with him he would call the police and arrest me for prostitution. [74]

Valerie S., a transgender sex worker from Queens described
an incident she said occurred three months earlier:

An Asian police officer came up. I thought it was a client,
I went into his car. I put my hand on his, he didn’t let me and we kept
driving. I started leaving the car at the red light. He said ‘stop,
I’m police’ and showed his badge. He said he wanted oral sex. I
said ‘what do I do’? Looking at the badge, I didn’t want to
get arrested.[75]

Mona M., a former sex worker who now does outreach in the Queens
transgender community told Human Rights Watch,

I’ve heard from some of the girls that they have an
agreement with the police. It means if you have sex with me, your charges will
disappear.[76]

None of these individuals complained to the police or other
authorities. Anna E. was forced by a New York City police officer to have sex
with him in Queens in 2006. She explained why she never reported the incident:

No, because I was too terrorized by all the other
interactions with the police, I haven’t reported it until now [that I am
sharing it with Human Rights Watch]. I have faced so much discrimination and
trouble with so many cases, and so many psychological problems with the case, I
didn’t want any more trouble. But if I had the psychological state to do
it, I would, because I think it’s important.[77]

NYPD mistreatment of transgender people has been documented
by Amnesty International and others.[78] On June
12, 2012, the NYPD announced reforms to the official patrol guide intended to
improve interaction between police and members of the transgender community.[79] This is a step forward but the testimony of individuals interviewed for this
report indicates much work remains to protect the human rights of sex workers
and transgender persons in New York City.

LGBT Youth Affected By Condoms as
Evidence

Men who
have sex with men and LGBT youth are at high risk of HIV infection in New
York City. In 2009, HIV diagnoses among men who have sex with men aged 13 to
29 surpassed, for the first time, those among men aged 30 and older.[80] In New York City between 2006 and 2010, new HIV infections among young men
who have sex with men, particularly young men of color, were consistently
higher than in any other transmission category.[81]

One in
four LGBT teens runs away or is forced to leave home, and between 20 and 40
percent of homeless youth self-identify as LGBT.[82] Many may not identify as sex
workers but may exchange sex for money, food, and other necessities. LGBT
youth report being harassed for possessing condoms by police enforcing
anti-prostitution laws.

Streetwise
and Safe (SAS) is an advocacy organization for LGBT youth of color focused on
challenging harmful criminal laws, policies, and practices that target this
population. In 2011 SAS participated in research conducted by the PROS
(Providers and Resources Offering Services to sex workers) Network and the
New York Department of Health and Mental Hygiene (DOHMH) by surveying peers
in their age group and others about police harassment for condoms. Of those
surveyed by SAS members, 60 percent had been stopped and searched by a police
officer, and one-third said police had taken condoms away from them. Half of
the survey participants said they feared carrying condoms because of trouble
with the police.[83]

Outreach
workers to LGBT youth told Human Rights Watch about a young girl in Manhattan
who refused to take more than one condom out of fear of arrest:

I was
handing out condoms in Tompkins Square Park. One lady came up and took two
condoms. I said ‘you can take more’ but she said ‘no,
they’ll arrest me.’ She was scared to take them… she might
have been 18 [years old].[84]

In May
2011 SAS co-hosted a forum with Manhattan District Attorney Cyrus Vance to
address criminal justice issues. Nearly 50 LGBT youth testified about the practice
of police confiscating condoms and using them as evidence of prostitution and
loitering for prostitution charges.[85] According to Andrea Ritchie, civil
rights lawyer and activist and co-coordinator of SAS,

LGBT
youth are primary targets of HIV prevention efforts, including condom
distribution in schools, drop-in centers, and communities. At the same time,
they make up a disproportionate number of homeless youth and are subject to
intense policing practices in public spaces as a result…They are routinely
profiled as being engaged in prostitution-related offenses and subjected to
NYPD stop-and-frisk practices. This all adds up to a lethal combination where
condoms are confiscated and used in evidence, undermining public health
efforts and criminalizing LGBT youth.[86]

Although
not the focus of this report, police interference with condom possession
among LGBT youth in New York City merits further investigation.

Documentation of Condoms as Evidence from the New York City Department of Health and Mental Hygiene and the Urban Justice Center/PROS Network

In the
summer and fall of 2010 the Sex Worker Project of the Urban Justice Center
and the PROS Network assisted the New York City Department of Health and
Mental Hygiene (DOHMH) in conducting a survey of sex workers in New York City
to assess the prevalence of the practice of police using condoms as evidence
of prostitution. The findings of this survey were not released publicly, even
to the PROS Network, until Human Rights Watch obtained a redacted version in
February 2012 by filing a request under the New York Freedom of Information
Law. The results indicated that of 63 individuals surveyed, 81 percent had
been stopped and searched by a New York City police officer; 57 percent had
had condoms taken away from them by a New York City police officer; and 29
percent said they had at one time not carried condoms because they were
afraid of trouble with the police. When this group was asked to explain what
about the police made them fear carrying condoms, statements ranged from
their own experiences with arrest, hearing that condoms could cause you to be
marked as a prostitute, and the potential embarrassment of having condoms
seized.[87]

On the
basis of this report, DOHMH included the issue of using condoms as evidence
in their 2011 Enhanced Comprehensive HIV Prevention Plan (ECHPP) submitted to
the Centers for Disease Control and Prevention in March 2011, noting their
support for current legislation pending in the New York State legislature
that would prohibit the use of condoms as evidence of prostitution, and
stating that discussions with the New York City Police Department about the
issue were “underway.”[88] However, in an interview with the New York Times published on April 24, 2012,
a spokesperson for the DOHMH stated that the department had reversed its
position:

After the
Commissioner reviewed the study, which found that the current law has not
resulted in sex workers consistently failing to carry condoms because of fear
of arrest, he decided not to support the legislation. We have seen no
evidence that the current law undermines the public health aims of condom
distribution.[89]

The Sex
Worker Project of the Urban Justice Center and the PROS Network followed up
on these findings with additional surveys taken in the fall of 2011. In a
report released on April 17, 2012, the two organizations reported that 74
percent of the 35 sex workers surveyed had been stopped and searched by the
police, and 46 percent of sex workers surveyed had at one time not carried
condoms due to fear of the police. Fifteen sex workers reported having had
condoms confiscated by the police, with six of these individuals reporting
that they continued engaging in sex work after the confiscation. Of these six
sex workers who engaged in sex work after the confiscation, three did not use
protection.[90]

Response of New York City Public Officials

Human Rights Watch requested interviews with the New York
City Police Department, the District Attorneys in each of the four boroughs
addressed in this report, and the New York City Department of Health and Mental
Hygiene.

The NYPD “respectfully declined” to meet with
Human Rights Watch.[91] The New York City Department of Health and Mental Hygiene did not respond to
repeated written requests for an interview.[92] As of May 2012, only
the Manhattan and Queens District Attorneys had granted our request for
interviews, though the Manhattan District Attorney’s office has not
scheduled an interview as of this writing. The Bronx District Attorney’s
office replied that, “we have not seen cases where such evidence [condoms
used as evidence of prostitution-related offenses] was collected or used.
Accordingly, at this time there seems to be no reason for a meeting,” but
failed to respond to subsequent requests to clarify this statement.[93] The Brooklyn District Attorney failed to respond to a request for an interview,
but has publicly expressed its opposition to proposed legislation prohibiting
the use of condoms as evidence.[94]

In the view of the office of the Queens District Attorney,
condoms are useful items of evidence in prostitution-related offenses, and
banning condoms as evidence “would seriously damage our cases.”[95] The office emphasized the importance of using condoms as evidence in sex
trafficking and promoting prostitution cases in which the alleged prostitutes,
mostly women, are victims of criminal exploitation. Lois Raff, Counsel to the
Queens District Attorney, stated,

We spend a lot of focus on going after pimps and sex
traffickers for promoting prostitution, kidnapping, and sex trafficking. In
that context as well, condoms may be one way the pimp will facilitate
prostitution, by providing them.[96]

The Queens District Attorney stated that condoms were useful
in efforts to close brothels and other businesses engaging in prostitution such
as nail salons, hotels, and residences. “A large number of condoms will
be evidence in these cases,” said Ms. Raff.[97] Their
office currently has seven sex trafficking cases and 65 cases for promoting
prostitution, internet crimes, and illegal massage parlors pending disposition.
With regard to sex trafficking and promoting prostitution, they estimated that
condoms were part of the evidentiary basis for the prosecution in two of these
cases.[98]

The NYPD
“Stop-and-Frisk” Policy

In New York
City, police stops and searches of sex workers, and those profiled to be sex
workers, can be placed in the larger context of questionable police policies
for stopping and searching persons without suspicion of criminal activity.
The US Constitution and New York State Law permit an officer to stop an
individual temporarily if the officer has reasonable suspicion that the
individual is committing or has committed a crime, and to frisk the
individual for a weapon if the officer reasonably suspects that he is in
danger of physical injury.[99] A pending federal lawsuit, Floyd
v. City of New York, challenges the NYPD’s “stop-and-frisk”
practices, claiming that a substantial number of the nearly 700,000 annual
stops and frisks by the police lack adequate grounds for reasonable
suspicion, are racially motivated, and are unlawfully targeted toward black
and Hispanic New Yorkers.[100]

Although
not specifically focused on stops and frisks enforcing anti-prostitution or
loitering laws, plaintiffs in Floyd have submitted extensive evidence that an
NYPD policing policy based on quotas for stops and arrests is a driving force
behind many of the stops and frisks.[101] This policy,
described officially by NYPD as “minimum thresholds for
performance,” but as “quotas” by current and former
officers, rewards a certain number of street stops per week.[102] It is not clear how many stops on suspicion of sex work are recorded as
“stops and frisks,” but many of the neighborhoods where stops and
frisks occur on a regular basis are the same neighborhoods where sex workers
are frequently stopped. Jackson Heights, Queens, for example, the location of
much of the harassment of Latina transgender women documented in this report,
has the third-highest rate of stops and frisks in the city.[103] In New York City, failure to respect the right of sex workers, transgender
women, and LGBT youth to liberty and security of the person is part of
broader human rights concerns raised by practices of the NYPD.

Washington, DC

HIV in Washington, DC

The HIV epidemic in Washington, DC is one of the most severe
in the United States. The overall prevalence of HIV in the District is three
times higher than the one percent designated by the World Health Organization
as a generalized epidemic.[104]Washington, DC has the highest AIDS diagnosis rate and the second-highest
rate of new HIV diagnosis among major metropolitan areas in the United States.[105] Half of the District of Columbia population is African-American.[106] Of the 17,000 persons living with HIV, however, 75 percent are African-American.
Most people living with HIV in Washington, DC are males (72 percent), but black
women in DC are 14 times more likely to be living with HIV than white women.[107] Sex between men is the most frequent mode of transmission, responsible for 38
percent of all living cases of HIV/AIDS, with 27 percent of people living with
HIV/AIDS reporting infection through heterosexual contact and 16 percent
through injection drug use.[108]

The District of Columbia’s response to HIV came under
heavy criticism in the last decade. In 2005 the non-profit public policy
organization DC Appleseed Center for Law and Justice released a comprehensive
critique of the city’s failure to adequately budget, plan, and confront
the HIV epidemic in the District. The report called for sweeping reforms in
infrastructure, coordination, and resources for surveillance, prevention, care,
and services.[109] That same year the HIV Prevention Planning Council for the District appealed to
the federal Centers for Disease Control and Prevention to intervene in the city
HIV and AIDS office as it was missing federal deadlines for developing and
reporting crucial epidemiological data for the city.[110]

Major changes followed these reports, including a new
director for the HIV program and an organizational restructuring in the
District of Columbia Department of Health. Every year since the initial report,
DC Appleseed has issued a report card on the District’s efforts in the
battle against AIDS. The most recent report card indicates that substantial
progress has been made in many areas, confirmed by Department of Health data
showing a decrease in the HIV prevalence to the current figure of 3.2 percent,
a decrease in new AIDS cases, a testing program that nearly doubled the number
of HIV tests, and a significant decrease in deaths from AIDS.[111]

City government in the District of Columbia has demonstrated
a commitment to improving its response to the HIV epidemic, and HIV remains a
focus of the current administration. In 2011, Mayor Vincent Gray appointed a
Mayor’s Commission on HIV and AIDS in order to “help end the HIV
epidemic in the District of Columbia by focusing on treatment, the needs of
people living with AIDS, and the prevention to stop new infections.”[112] The Commission will bring together medical providers, academics, faith-based
community members, and members of government to make recommendations on best
practices for improving care, services, and prevention programs. In July 2012
the city will host the 19th Annual International AIDS Conference, where the epidemic
and the response of the District will be in the spotlight.

One area of marked improvement is condom distribution in the
District of Columbia, where four million condoms were distributed in 2010
compared to 115,000 in 2006.[113] The Rubber Revolution, part of the District of Columbia’s HIV prevention
program, uses the internet and other social media to encourage condom use. The
Rubber Revolution website says,

Today is the day that you join the Rubber Revolution, a new
movement in DC to take condoms out of hiding. We want to get those rubbers out
of your wallet, remove them from your purses and pull them out from under the
beds of every ward in the city. We want condoms in the hands of the men and
women of DC to use for responsible and good sex. We are creating a movement of
people who are committed to getting and using condoms. No longer will we have
to hide condoms.[114]

Anti-Prostitution Enforcement in Washington, DC

Washington, DC law prohibits engaging in or soliciting
prostitution, an offense defined as “a sexual act or contact with another
person in return for giving or receiving a fee.”[115] Penalties range from a fine of not more than US $500 and/or 90 days in jail for
a first offense to a possible two year jail sentence for the third offense.[116]

In 2005 the DC Council enacted the Omnibus Public
Safety Act that provided for the declaration of “Prostitution-Free
Zones” (PFZ) by the Metropolitan Police Department (MPD). Under this
statute, the MPD may designate an area a PFZ on the basis of “disproportionately
high” arrests for prostitution or calls for police service related to
prostitution in the locale in the previous six month period, or
“objective evidence or verifiable information” indicating that a
high incidence of prostitution is occurring in that locale.[117]

Within the PFZ police may arrest or disperse persons
determined to be engaging in or soliciting prostitution, based on a range of
behaviors and factors similar to those enumerated in New York City’s
loitering for prostitution laws. These include not only conduct such as
flagging down cars and conversing with passers-by, but being a “known
participant in prostitution or prostitution-related offenses.”[118] In addition, in the PFZs police may arrest two or more persons who are
“reasonably believed” to be congregating for the purposes of
prostitution and who fail to disperse when ordered to do so.[119] The
declaration of a PFZ can last as long as 480 consecutive hours after notice is
posted in the area by the MPD.[120]

Although prostitution is unlawful throughout Washington, DC,
the broadly drawn loitering laws that permit arrest based on a range of
circumstantial evidence are enforceable only within an officially declared PFZ.
This statute was immediately controversial, drawing opposition from a broad
spectrum of community groups and civil liberties advocates.[121] No
legal challenge, however, has ever been filed, primarily because MPD has never
made an arrest for failure to disperse under the PFZ statute, leaving its
legality untested in the courts.[122]

The MPD practice of dispersing people from the PFZs was the
subject of advocacy in the sex worker and transgender community. Police
profiling of transgender persons as prostitutes was a significant factor in
organizing the transgender community to push for the addition of transgender
and non-gender conforming people to the city’s Human Rights Act in 2005.[123] After two years of negotiation between the transgender community and the MPD,
the MPD issued guidelines for members of the police force addressing their
interaction with transgender individuals that includes a prohibition on
profiling transgender persons as sex workers:

Members shall not solely construe gender expression or
presentation as reasonable suspicion or prima facie evidence that an individual
is engaged in prostitution or any other crime.[124]

In January 2012 the DC Council considered a bill sponsored
by Councilwoman Yvette Alexander to expand the prostitution-free zones.[125] The new bill would have permitted the MPD to declare a PFZ on a permanent basis
for an unlimited period of time. Between 2009 and 2012, arrests for
prostitution-related offenses decreased by nearly 50 percent, from 1,695 in
2009 to 845 in 2011.[126] In testimony before the Committee on the Judiciary regarding the bill,
Assistant Chief of Police Peter Newsham opposed expansion of the PFZs,
explaining that they had little to do with the drop in prostitution arrests in
recent years. Chief Newsham stated that the PFZs had not reduced prostitution
in the District in a meaningful way, rather subjecting it to “temporary
displacement.”[127] He noted that prostitution complaints from citizens as well as arrests had
steadily decreased in the last several years, a decrease he attributed to
several factors other than the PFZs, including the movement of many prostitution
activities indoors and onto the internet. With regard to street prostitution,
he stated that in his experience, many people engaging in this type of
prostitution are drug dependent or have mental health problems, and “this
is not a problem we can arrest our way out of.” Chief Newsham urged an
increase of social services to the population engaged in prostitution.[128]

The Office of the Attorney General for the District of
Columbia also testified against expansion of the PFZs, noting that the original
PFZ legislation was vulnerable to constitutional challenge and the expansion
bill was even more likely to be found unconstitutionally vague.[129] The proposed legislation was returned to the Committee by the Council as whole
for reconsideration and as of June 2012 had not been enacted.[130]The original PFZ legislation remains in place.

Condoms as Evidence of Prostitution

In Washington, DC, sex workers told Human Rights Watch that
condoms were used as part of police stops on suspicion of prostitution.

Stops and Searches for Condoms

In Washington, DC as in other jurisdictions a lawful stop
requires reasonable suspicion of criminal activity and lawful searches must be
based on probable cause for arrest on a specific charge.[131]Every stop, however, does not result in arrest, and most stops reported
to Human Rights Watch consisted of police questioning, searching, and demands
to “move along” without resulting in an arrest. It was during these
encounters that sex workers were most frequently targeted for carrying condoms
during enforcement of the anti-prostitution laws.

Annie P., an African-American transgender woman who used to
be a sex worker told Human Rights Watch,

I stopped tricking three years ago. But when I walk through
the old neighborhood where my boyfriend still lives, I get stopped by the
police who think I am still working. A few months ago I had been visiting my
boyfriend and I had three condoms still on me. The police stopped me, asked me
to empty my pockets, and asked me why I was carrying so many condoms. I said
‘cuz that’s how many times me and my boyfriend do it.’ But he
didn’t believe me, and made me wait while he looked to see if there were
prostitution charges against me. Since I didn’t have any recent ones he
let me go.[132]

Cassandra A., a transgender woman and sex worker, stated,

I was stopped at 4th Ave and Rhode Island Avenue. I and a
friend had gotten a ride to the store, and we were stepping out of the car when
some vice cops rode up. They were looking for drugs or something so they patted
us down and asked me why I was carrying a condom and asked was I tricking?
‘Are these guys your pimps?’ And I said no and we didn’t have
any drugs so they let us go. This happens all the time that they ask about the
condoms you are carrying, if you are a known prostitute it is one of the basic
questions asked by the cops when they stop you.[133]

Lee H., an African-American sex worker, also said that
police frequently target condoms during stops:

Three months ago in the downtown area I was stopped by the
cops. They told me to put my hands on the police car and they searched my
purse. They asked me why I had so many condoms. I had 15 condoms in my purse,
and if you have more than two condoms they think you are a sex worker. I told
them it was not their business how many condoms I had. I said I might be out
here giving it away but I’d rather have too many than not enough.
It’s not for them to tell me how many condoms I can have… This was
the 3rd or 4th time this happened to me in DC.[134]

Zinnia F., a transgender sex worker in the downtown area
said,

Yes it happens, they say ‘why do you have so many
condoms?’ No one walks around with a lot of condoms because of it. It
happened to me two times, once last summer. This was in the K street area.[135]

Oh yes, at 14th and Perry, on the 26th of December, the
cops harassed me and told me to throw my condoms in the garbage. I told them
‘no I am not throwing them in the garbage! I don’t want to
die!’[136]

Outreach workers also said that sex workers express a fear
of being found by police in possession of condoms. Jenna Mellor, Director of
Outreach for HIPS (Helping Individual Prostitutes Survive) runs the mobile
outreach van that provides condoms, clean syringes, and other harm reduction
materials to sex workers several times per week. Mellor told Human Rights
Watch,

Fear of taking condoms is a real problem. Clients take
fewer condoms than they need because they fear the police. They also hide
condoms in their clothes, their wigs, their cleavage, in order to avoid being
hassled by the police.[137]

Mellor also said that generally police are tolerant of the
outreach van, but there have been occasions when police cars have followed the
van. Recently, a police car waited for a transgender individual to visit the
van, and then the officers got out of the car and stopped and searched her:
“Some police are supportive and leave us alone, but it is by no means 100
percent supportive.”[138]

Monica B. facilitates the transgender support group at HIPS
and does outreach to sex workers to let them know about the group:

Three months ago I was in the downtown area doing outreach.
I give out condoms and let people know about the [HIPS] program. The cops
stopped me and went through my bag, asked me what am I doing with all these
condoms? I explained that I was an outreach worker and promoting my group. They
did not arrest me but they sure gave me a hard time.[139]

Lina C., an African-American transgender sex worker,
described a recent experience while “on the stroll” (an area where
sex work regularly occurs):

Last summer I was on the stroll. I had just left the [HIPS]
truck and they asked me why I had so many condoms. I said I had just come from
the truck. They asked me my history, whether I had ever been arrested in the
past. They also approached the truck to verify my story. They didn’t
arrest me but they harassed me for 45 minutes.[140]

Some sex workers referred to a “3-condom rule”
in the District of Columbia. Nila R. told Human Rights Watch that she received
that information from a police officer:

In 2011 they locked me up in the 5th district. The cop told
me I could have three condoms and threw the others out, I had ten altogether.
Also, an open condom is a charge. I’ve been locked up for it, the cops
told me they were locking me up for an open condom.[141]

Madison M., a sex worker interviewed at a motel in the
northeast section of the city, stated,

I haven’t been hassled myself, but I heard there was
a rule that you can only carry three condoms.[142]

Abuse of Transgender Women by Police

Transgender women were the majority of those we interviewed
who complained about stops and searches for condoms, and their testimony
described abusive behavior by police.

Jody B., a 23-year-old female-to-male transgender person
stated,

The police ask constantly, ‘how much are you
charging?’ In October I was coming out of the China theater in Chinatown
on a date with my boyfriend. They stopped both of us, searched me, I had
condoms in my purse. We talked our way out of it so they did not arrest us. Us
transgenders, we get used to not reporting these things. It’s hard;
I’m stepping back from being full-on transgender, because it’s
hard.[143]

Lina C. said that police encounters were often traumatic:

I was arrested last year and it was humiliating. They
defaced me. They took off my wig and stomped it on the ground, then handed it
back to me when they put me in the car.[144]

Monica B. stated that in her outreach work she has observed
this “defacing” behavior and other abuse occurring during police
stops:

The police are often extorting for sex, taking out
people’s falsies and dropping them on the street, this does not happen
every day but it happens regularly.[145]

Response of Washington, DC Public Officials

Assistant Chief of Police Peter Newsham expressed concern
that the police were discouraging the use of condoms among sex workers or any
other member of the public. He said that condoms could be used as supplemental
evidence collected “incident to arrest.” He explained that in
Washington, DC, prostitution cases are not a high priority and that arrests
that are made are usually “complaint-driven,” meaning members of
the public have complained about activity in their neighborhoods. According to
Chief Newsham, the emphasis is now on pimping and human trafficking cases, and
the priority is to charge those who are exploiting the women involved. Chief
Newsham asserted that condoms may be helpful as supplementary evidence in these
cases and will continue to be collected at the scene.[146]

Further, Chief Newsham emphasized that searches must be made
only if there exists probable cause for arrest. He was concerned to hear that
people reported being stopped and searched in circumstances that suggested a
lack of probable cause. He also expressed concern that transgender individuals
were alleging “profiling” and other abuse, and asked if they had
filed complaints. When hearing that people often feared filing police
complaints, he emphasized that there were anonymous ways to make complaints and
agreed to ensure that community members were aware of these methods.[147]

Chief Newsham expressed his concern that police were
“editorializing” about condoms in a manner that conveyed a threat
to arrest sex workers for possession of condoms. Newsham agreed to consider
issuing guidelines prohibiting such commentary and to underscore for MPD
officers the importance of encouraging condom use. He agreed to meet with
public health and other city officials and members of the sex worker community
to discuss steps that can be taken by MPD to address all of these issues.[148]

Judge Linda Kay Davis, the judge in the special
“prostitution docket” of the Criminal Court said that in two years
of presiding over individual prostitution cases she had never encountered
condoms presented as evidence in her court.[149]

The US Attorney had no comment on the issue of condoms, or
any other evidence in their cases, as a matter of policy.[150]

The Washington, DC Department of Health responded with
concern to the findings of this report and agreed to consider proposals from
community organizations for action before the International AIDS Conference.[151]

Los Angeles

HIV in Los Angeles

Los Angeles County is a sprawling area that is home to
nearly 10 million people.[152] The
County includes the City of Los Angeles and numerous smaller cities. Los
Angeles County is the entity for which HIV and AIDS statistics are collected by
the Los Angeles County Department of Public Health (LADPH) and the entity to
which HIV funding is provided by the federal government.[153] In Los Angeles County, 59,500 persons are estimated to be living with HIV.[154]Forty percent of people living with HIV in Los Angeles County are Latino.[155] In 2012, 80 percent of new HIV diagnoses occurred in men who have sex with men
and 11 percent in those who reported heterosexual contact. Among women, Latina
women had the most new HIV infections (42 percent) compared to 39 percent in
African-American women and 14 percent in white women.[156]

According to LADPH there are an estimated 926 transgender
persons living with HIV in Los Angeles County.[157] The
rate of HIV infection is difficult to determine because the size of the
transgender population as a whole is uncertain.[158] Nevertheless, Los Angeles has a large and vibrant transgender community, and
HIV infection is one of its greatest concerns. In 2001 several community
organizations partnered with the LADPH to publish a study of transgender
health.[159] The authors noted the lack of data concerning the health of a
“marginalized and underserved population” and surveyed 244
male-to-female transgender persons.[160]

The 2001 LADPH report found a 22 percent HIV prevalence
among the group, many of whom were not aware of their infection. Half of the
participants had an annual income of less than $12,000, and half also noted
that their primary income was derived from sex work. Despite a high level of
knowledge about HIV transmission, condom use was inconsistent, with 29 percent
of people who had exchanged sex for money or other goods in the last six months
stating that they did not always use a condom. Thirty-seven percent reported
verbal abuse or harassment by the police. The report concluded, among other
recommendations, that HIV prevention programs tailored to transgender women in
Los Angeles were “urgently needed.”[161]

Another transgender needs assessment conducted by LADPH in
2007 found that of 80 transgender persons surveyed, one in five was
HIV-positive. Numerous factors associated with high HIV risk were identified,
including sex work, unemployment, and transphobia. One-third of transgender
persons surveyed had traded sex for money or other goods. The needs assessment
was cited in the LADPH HIV Prevention Plan for 2009-2013, with the conclusion
that transgender persons were a “priority and critical target population”
for HIV prevention in Los Angeles.[162]

Increased condom distribution to high-risk groups is also a
top priority for Los Angeles County Department of Public Health. Along with New
York, Washington, DC, and San Francisco, Los Angeles is a participant in a
funding initiative of the US Centers for Disease Control and Prevention (CDC),
focusing on high prevalence urban centers as part of its implementation of the
National HIV/AIDS Strategy. (Although the program is called the
“12-cities” program, the entity receiving federal funding is the
County of Los Angeles).[163]One of the required HIV prevention interventions for all
“12-cities” program participants is increased condom distribution
to high-risk populations. Los Angeles plans to accomplish this goal by
increasing distribution to high-risk populations and by marketing a Los
Angeles-branded condom.[164]

Public health officials have worked with the Los Angeles
Police Department in the past to address law enforcement practices that were
impeding efforts to prevent HIV. In 2005 Chief of Police William Bratton issued
what has become known as “the Bratton Declaration,” an example of a
best practice in bringing law enforcement, public health agencies, and HIV
advocates together to ensure that drug users had access to syringe exchange programs
without police interference. The Bratton Declaration established clear
guidelines for all members of the LAPD to follow that emphasized the role of
the city’s syringe exchanges in HIV prevention and prohibited officers
from seizing syringes as evidence of drug possession from syringe exchange
participants.[165]

A History of Police Abuse of Transgender People in
Los Angeles

Public health and human rights advocates have documented a
disturbing history of police abuse and harassment of transgender people in Los
Angeles. The 2001 Transgender Health Study found that 37 percent of transgender
persons surveyed had endured verbal abuse or harassment by the police. Amnesty
International’s 2005 report Stonewalled: Police Abuse and Misconduct
Against Lesbian, Gay, Bisexual and Transgender People in the United States
documented Los Angeles Police Department (LAPD) police profiling of transgender
persons as sex workers, verbal and physical abuse in the street, and cruel,
inhuman, and degrading treatment in police custody.[166]A recent book co-authored by Andrea Ritchie, who served as a consultant
on the Amnesty report, reported numerous incidents of police abuse in Los
Angeles, including an alleged rape of a transgender woman by an officer of the
LAPD.[167]

In April 2012 the Latino advocacy organization Bienestar
released the results of a survey of Latina transgender women about their
interactions with law enforcement in Los Angeles County.[168] Bienestar interviewed 220 Latina male-to-female transgender persons, 95 percent
of whom were born outside of the United States and half of whom were
undocumented. One in three described her employment status as “sex
worker,” while nearly half reported currently exchanging sex for food,
money, shelter, or drugs. The report found that the majority had been verbally
harassed by the police, one in five had been physically assaulted by law
enforcement, and one in four had suffered sexual assault by a law enforcement
officer. For most survey participants, being profiled as a sex worker was a routine
occurrence as people reported being stopped by police while waiting for the bus
and coming back from the grocery store. Most incidents were never reported as
people were afraid of further police abuse or immigration intervention. The
report recommended improved trainings for officers interacting with transgender
individuals, enforceable policies prohibiting abuse and misconduct, and
appointment of a liaison between law enforcement and the transgender community.[169]

In April 2012 the Los Angeles Police Department issued new
guidelines for interaction with transgender individuals.[170] Included in the guidelines is the “recognition that non-traditional
gender identities and gender expressions do not constitute reasonable suspicion
or prima facie evidence that an individual is or has engaged in prostitution or
any other crime.”[171] Though issued less than three weeks after the Bienestar report, the new
guidelines represent the culmination of several years of negotiation between
city agencies, the transgender community, and HIV advocates. In 2009 the HIV
Prevention Planning Council established a transgender task force that
recommended numerous criminal justice reforms including a reconsideration of
the practice of using condoms as evidence of prostitution.[172] This report was followed by formation of the Transgender Working Group (TWG), a
coalition of community and legal organizations, city agencies, and the LAPD
working to improve treatment of transgender persons in the city’s
criminal justice system. The TWG also issued recommendations for criminal
justice reforms that included ending the possession of condoms as evidence of
prostitution.[173] The
LAPD adopted some of these recommendations including guidelines for police
interaction with transgender individuals, new procedures for assigning
transgender persons to jail, and a transgender unit to be established in the
women’s jail rather than assignment to male or female facilities
according to biological sex.[174]

Condoms as Evidence of Prostitution

In 2010 the LAPD arrested 4,775 adults and 123 juveniles for
prostitution-related offenses.[175] Arrests are most common under the statute prohibiting prostitution (Penal Code
Section 647(b)) that makes it a misdemeanor offense to “solicit[] or
… agree[] to engage in or … [to] engage in any act of
prostitution.” The statute requires that there be an act “in furtherance”
of the crime in order to convict.[176]A loitering statute also prohibits the act of loitering with intent to
commit prostitution. Like New York’s law, California’s loitering
statute is broadly drawn, permitting arrest on the basis of circumstantial
evidence that includes beckoning passers-by, stopping vehicles, being in an
area “known” for prostitution activity, and having engaged in any
of these behaviors “or in any other behavior indicative of prostitution
activity” in the six months prior to the arrest.[177]

In addition, California state law requires mandatory HIV
testing for anyone convicted of a prostitution charge for the first time and
anyone arrested with a prior prostitution-related conviction.[178] If
arrested on prostitution charges again after testing positive for HIV, charges
can be elevated from a misdemeanor to a felony charge, carrying a possible
sentence of up to three years in prison.[179] Enhanced penalties
for recidivism per se are not problematic, but here no sexual activity is
required by the statute; the felony charges can be imposed solely on the
finding of intent or agreement to commit prostitution after a prior
prostitution conviction and a positive HIV test.[180] No data
were available on the numbers of prosecutions in California under this statute.
In one case, however, the defendant was convicted of felony prostitution, and
the evidence against her included a previous positive HIV test and the
“condoms in her purse.”[181]

According to sex workers in Los Angeles, condoms are
commonly used as one of the bases for arrest for prostitution.

Kathy B., 46, is a transgender Latina woman who works in her
husband’s skateboarding business. She was a sex worker until one year
ago, and she told Human Rights Watch,

Yes I’ve had incidents with the police. The last one
was December 2010 at a hotel…They searched my bag. I never consented to a
search. And they found condoms in my bag, about four condoms. And they pulled
them out, mocking me, and said ‘look what we have here.’…They
gave me a ticket for escorting without a license.[182]

Alessa N., a transgender woman from Mexico, described an
arrest that occurred in June 2010:

I was carrying condoms. They took the condoms out of my
bag… I had six, and the condoms were part of the evidence. I went to
jail.[183]

Outreach workers have also been harassed for distributing
condoms. Bamby Salcedo works with the Transgender Service Provider Network in
Los Angeles and is a long-time transgender activist. Ms. Salcedo told Human
Rights Watch that the outreach workers on her staff had been stopped and
questioned several times by the police for distributing condoms.[184]

The Three-Condom Rule

A belief that it was illegal to carry more than three
condoms was pervasive among sex workers in Los Angeles.

Violet T., a sex worker who works indoors, asked Human
Rights Watch,

The three condom rule, is it state law? …I’ve
literally been walking around believing this. If there’s something on the
books supporting this rule than that’s one thing. But if none of this is
written in the law, how can they use condoms as evidence against us?[185]

Many people stated that the source of the widespread belief
in the “three-condom rule” was the police.

Lola L., 53, a sex worker who also does street outreach,
said,

The police have told me, when you’re in a high risk
area, don’t carry more than three condoms on you because we can arrest
you. And I’ve said, ‘how do I know what is a high risk zone?’[187]

One outreach worker stated that according to sex workers
stopped by the police, two condoms was the limit:

I am an outreach worker. When I go hand out condoms, there
are some girls who say to me ‘give me enough for the whole week.’
Others say they don’t want more than two, because if they have more than
two, then I can be arrested for prostitution. This is what the police tell
them, that if they have more than two condoms in their purse, they can be
charged with an act of prostitution.[188]

Police Profiling as Sex Workers

Transgender women told Human Rights Watch that they were
constantly stopped and harassed by the police on suspicion of sex work, often
in the neighborhoods where they live, work, or go to school. Marsha P. said
police used condoms to support the inference that she was engaging in sex work:

I work in a restaurant. And I have been stopped on the way
home from work. I’ve been accused of being a prostitute because I am
walking with two condoms in my pocket. And it’s not a crime.[189]

Bamby Salcedo from the Transgender Service Provider Network
described police profiling as a serious and ongoing problem:

We’ve done protests in front of the police department
about the continuous harassment to the community because some of the community
members live in areas that might be ‘high risk’ or ‘hot
areas’ but they have to go to the store, they have to take a bus, and
just because they are walking they get stopped and harassed and sometimes
arrested just because of where they are and who they are.[190]

Shayla Myers is a staff attorney at the LGBT Access to
Justice Project in Los Angeles. Ms. Myers has been representing low-income
transgender women for two-and-a-half years, primarily on a project dedicated to
expunging criminal records in order to permit LGBT people to increase
employment opportunities. Myers stated that condoms make it easy to arrest
transgender women for prostitution under the loitering statute:

Being trans, walking, and carrying condoms: that’s
enough to establish probable cause for arrest…Police need to stop
profiling people. I have clients with 12, 13 convictions…I’ve heard
folks say they are afraid of carrying condoms or they won’t take condoms.[191]

Immigration Consequences of Arrest for Prostitution

For undocumented sex workers, the immigration laws that
penalize prostitution result in removal and other serious consequences. Joseph
Weiner, staff attorney at the Immigrant’s Rights Project of the Public
Counsel Law Center of Los Angeles, has had numerous transgender clients removed
from the US as a result of prostitution convictions. In addition, some of his
transgender clients who have obtained relief, such as asylum or relief from
removal, have lost their status after conviction for prostitution while
HIV-positive.[192]

As the Bienestar report noted, many incidents of police
abuse and misconduct are not reported from fear of further bad treatment or
deportation. Elaine A. explained,

I never filed a complaint against [a policeman] because I was
afraid, I was afraid of getting deported. Many of the chicas don’t have
papers.[193]

Fear of Carrying Condoms as a Result of Police
Action

Many sex workers reported that they continued to carry
condoms despite fear of arrest. Marsha P. stated,

Have I ever been afraid to carry condoms? No, because I
know my rights in this country. Just because the police are not educated, that
does not make me afraid. I always carry condoms in my bag…I am more
afraid of getting sick than of the police.[194]

For many others fear of arrest, jail time, and conviction on
prostitution charges overcame even the need to protect their health. Kathy B.
stated,

When I was a sex worker, there was a time when I
wouldn’t carry condoms because if the police found them, they could use
them as evidence against me. In the past, when I was still a sex worker, I was
afraid of carrying condoms.[195]

Iris L., a 47-year-old woman from Mexico said:

I only carry one or two condoms with me. I’m afraid
of carrying condoms.[196]

Carol F., 28, is a transgender woman from Guatemala who does
sex work. She was first arrested for prostitution when she was 13, in an
incident in which Los Angeles police used condoms as evidence against her.
Traumatized by that experience, she was afraid to carry condoms:

After that arrest, I was always scared. The condoms, I
always found a place to hide them. And I stopped carrying three. I started
carrying one or two… and then there were nights that I did have to work
and I didn’t have a condom on me. There were times when I didn’t have
a condom and needed one, and I used a plastic bag.[197]

Several sex workers told Human Rights Watch that fear of
arrest due to immigration issues made them less willing to carry condoms.
Serena L., a former sex worker who is now in school, said,

‘Condoms in purse’ was on my arrest report. I
don’t carry condoms because this happened to me…if I get condoms, I
keep them in a separate bag. I don’t keep them in my purse. Especially
now that I am trying to fix my [immigration] status.[198]

Police Abuse, Harassment, and Misconduct

Sex workers reported verbal and physical abuse and neglect
of duty on the part of the police. This was particularly true for transgender
sex workers.

Kathy B. told Human Rights Watch of her arrest by two
officers in a hotel:

I was wearing a jacket and blouse. And they opened my blouse
and started taking pictures. He violated my privacy. But the main official told
me ‘shut up unless you want to go to jail.’ I said ‘I know my
rights. He doesn’t need to take pictures like that.’ So he closed
my blouse and continued taking pictures.[199]

Bamby Salcedo of the Transgender Service Provider Network
described several incidents of ill treatment of her clients by LAPD. She said
that a few weeks before Human Rights Watch interviewed her in March 2012, she
had assisted one woman who had been arrested and had condoms used against her
as evidence of prostitution:

[A few weeks ago], she was actually arrested because she
was on a particular corner and she had condoms on her…[but] it was more
about how she was treated…The arresting officers kept calling her
‘sir’ …The way the police talk to people in general when it
comes to a trans person, they have no respect.[200]

Ms. Salcedo explained that she helped this woman file a
complaint, but often the victims are reluctant to do so:

We help them, sometimes we will go to court with them. But
a lot of times they don’t want to out of fear of retaliation. Because the
same officers are the ones out patrolling, and the girls don’t want to
continue to deal with that.[201]

Carol F. told Human Rights Watch that she had been sexually
assaulted by someone from her church. Although she reported the assault to the
police, the case was not pursued. Carol stated,

The police officer said ‘I’m just a little
suspicious because you have a history of prostitution.’....I said
‘you mean I can be sexually assaulted because I was arrested when I was
13?’[202]

Brenda del Rio Gonzalez, a health educator and outreach
worker with Bienestar, works with Latina transgender sex workers in Los
Angeles. Brenda said that when these women are crime victims, they are afraid
to complain for fear of ill treatment and deportation. One woman told Brenda,

I don’t trust the police. Because when you try to
report a crime against you, they mock you and call you names. ... They say,
‘you’re a hooker. Do you have a penis? Do you have a dick? Do you
have documents?’[203]

Response of Los Angeles Public Officials

The Los Angeles Police Department (LAPD) told Human Rights
Watch that they maintain a strong enforcement campaign against prostitution,
largely in response to citizen complaints about the activity occurring in their
neighborhoods. Lt. Patrick Shields, officer in charge of the Special
Enforcement Section, stated that condoms are useful in proving an act in
furtherance under 647(b) and in supporting charges under the loitering statute.
He expressed concern about the public health issues raised by the practice and
stated that the department did not want to discourage anyone from carrying
condoms. Lieutenant Shields denied that there was a two or three condom
“rule” to guide official practice. However, Lieutenant Shields
defended condoms as targets of stops and searches of persons suspected of
prostitution, stating that “the average citizen isn’t walking
around with condoms in their pocket.”[204]

With regard to complaints regarding profiling and
interaction with transgender persons, Lieutenant Shields stated in a written
response that the LAPD “takes an active role in continually working with
the community and those individuals that may change their gender identity,
gender expression, and/or sexual orientation.”[205] Shields indicated that there is a class at the Police Academy to sensitize
officers to the issues faced by transgender people, as well as a department
liaison to that community, stating that LAPD takes a “strong stance
against discrimination.”[206]

The Office of the City Attorney of Los Angeles stated that
they did not wish to discourage people from carrying condoms, but they had seen
no evidence that this was occurring among those arrested for sex work.
According to Mary Claire Molidor, deputy chief of the Safe Neighborhoods and
Gang Division, it is “rare” that persons arrested for prostitution
do not have condoms in their possession.[207] Deputy
Chief Molidor stated that condoms are “not a focal point” for
filing prostitution charges, but they are routinely catalogued as evidence and
would be introduced at trial in support of these charges as probative evidence.
According to Chief Molidor, condoms would be particularly probative evidence
where there were a large number of condoms in someone’s possession or at
a business site such as a massage parlor.[208]

The Los Angeles County Department of Public Health declined
to comment, stating that LADPH “does not comment on activities or policies
of the Los Angeles Police Department.”[209]

San Francisco

HIV in San Francisco

San Francisco has played a unique and profound role in the
history of the HIV epidemic in many respects. The city reported its first AIDS
diagnoses in 1981, cases now recognized to be among the earliest incidents of
HIV to be reported in the United States.[210] A history of gay
activism that included the election in 1977 of the country’s first openly
gay municipal official, Harvey Milk, provided the foundation for a strong civic
response to HIV in the next decade. The Kaposi Sarcoma Foundation, founded in
1983, was one of the first grassroots organizations formed in response to HIV.
A candlelight vigil held in San Francisco in October 1983 was the first public
gathering of people living with HIV.[211]

Before the advent of combination anti-retroviral therapy in
the mid-1990s, San Francisco was devastated by the disease. Nearly 20,000
people, mostly gay men, have died from AIDS since the epidemic began,
approximately 1 in 40 residents of the city.[212] The epidemic in San
Francisco has stabilized, with a slight decline in the total number of new
infections in 2009.[213]In January 2011 there were 18,576 people living with HIV in San
Francisco, 2.3 percent of the population. HIV in San Francisco remains
concentrated in men who have sex with men, injection drug users, and men who
fall into both categories. In 2010 three percent of persons living with HIV in
San Francisco were heterosexual, and two percent were transgender.[214]

Racial disparities in relation to HIV are less evident in
San Francisco than in the United States generally. In San Francisco the
majority (63 percent) of persons living with HIV are white, and 16 percent are
African-American.[215]These figures still indicate a disproportionate impact of HIV on the
African-American community, however, as African-Americans comprise only 6
percent of San Francisco’s population.[216] Latinos are 15
percent of the population and 14 percent of people living with HIV.[217]

Overall, new infections in San Francisco have declined, but
“the epidemic is moving fastest among transfemales,” according to
the San Francisco Department of Public Health, with new infections occurring at
a rate of 2.5 percent.[218] Overall, more than one in three transgender women in San Francisco is estimated
to be infected with HIV. The San Francisco Department of Public Health
conducted a targeted study in 2010 on HIV prevalence among transgender women
and found that 40 percent of participants were HIV-positive. Compared with all
HIV cases diagnosed during the same period, transgender women with HIV tended
to be non-white (71 percent were African-American) with higher rates of
injection drug use. Only one in five transgender women with HIV participating
in the study had an income greater than US$21,000 per year.[219]

Condoms Barred As Evidence of Prostitution in 1994

Since the early years of the epidemic, San Francisco’s
approach to HIV prevention has been characterized by a mobilized, pro-active
community of people living with HIV working in partnership with the Department
of Public Health and other city agencies. This collaborative approach became
known as the “San Francisco Model,” emphasizing communication that
is positive and non-judgmental about sex and harm reduction rather than
abolition of risky practices. Importantly, structural change has always been an
important component of this approach, exemplified by early and consistent
involvement of the Mayor, Board of Supervisors, and other city institutions in
the fight against AIDS.[220]

In this environment of activism and sexual tolerance, Margo
St. James and other advocates for sex workers first addressed the issue of
condoms as evidence of prostitution in the late 1980s. The organization Call
Off Your Tired Old Ethics (COYOTE), founded by St. James, campaigned during
this period for greater education of sex workers and their clients about the
developing AIDS epidemic and fought to prevent the scapegoating of sex workers
for spreading the disease. In 1993 St. James and other advocates pushed to
create a Task Force on Prostitution in the San Francisco Board of Supervisors
for the purpose of “separating fact from fallacy” about
prostitution and “recommending social and legal reforms that best respond
to the City’s needs while using City resources more efficiently.”[221]

As it does today, California Penal Code Section 647(b) made
it a misdemeanor offense to “…[solicit] or….[agree] to engage
in or [to] engage in any act of prostitution.” The statute required that
there be an “act of furtherance” of the crime in order to convict.[222] It was in proving an “act of furtherance” that condoms were being
used as evidence by police and prosecutors. In May 1994, in response to a
proposal submitted by the Task Force, the Board of Supervisors enacted a
non-binding resolution urging that the San Francisco Police Department and the
District Attorney “shall no longer confiscate and/or use the fact of
condom possession for investigative or court evidence in prostitution-related
offenses.”[223]Among the grounds cited in support of the resolution were findings that
using condoms as evidence discourages condom use and undermines city policy for
HIV prevention. The resolution also found that the law enforcement value of
condoms was outweighed by the value of condoms for HIV prevention. The
resolution cited the fact that the District Attorney had made similar
accommodation for syringe exchange programs for reasons of public health.[224] See Appendix C for full text of the resolution.

District Attorney Arlo Smith responded to the resolution by
agreeing to suspend the utilization of condoms as evidence for a trial period,
noting in a letter to the Director of Public Health that, “in some of our
cases currently, condoms are needed as an element to prove the ‘act of
furtherance’ in order to prove the case. We will be working with the
Police Department to develop other evidence to prove the ‘act of
furtherance.’” Smith’s letter concluded, “With this new
policy we are trying to balance public safety and public health.”[225]The final report of the Task Force notes that in March of 1995
Smith’s office announced that they would permanently cease using condoms
as evidence of prostitution, but no other information was available regarding
the District Attorney’s implementation of this policy.[226]

Anti-Prostitution Enforcement in San Francisco

In addition to California Penal Code Section 647(b),
California law also prohibits “loiter[ing] in any public place with the
intent to commit prostitution.”[227] Other
prostitution-related offenses in California include pimping, prevailing upon a
person to visit a house of prostitution, and violations of the
commercial-business regulations.[228] The majority of people arrested for prostitution in San Francisco—both
the alleged providers as well as the patrons—are offered participation in
“diversion” programs.[229] These programs may offer alternatives to incarceration, but arrest still has
negative consequences, particularly for immigrants for whom arrest can trigger
removal, inadmissibility, or mandatory detention.[230]

According to the San Francisco Police Department (SFPD),
prostitution arrests are not a priority for the Department: “As a city,
we’re pretty morally open, and we don’t get a lot of complaints
about prostitution. We don’t have a lot of ‘tracks’ where
prostitution occurs,” said Lt. Jason Fox, supervisor of the Special
Victims Unit of the SFPD.[231] Prostitution is still enforced in San Francisco, however. Complete data on
prostitution arrests for San Francisco are not available, as the SFPD does not
maintain centralized or complete records for this offense.[232]However, from May through August 2011, 168 people were arrested for
prostitution under Penal Code Section 647(b) or loitering with intent to commit
prostitution under Penal Code Section 653.22.[233]These arrests were supported by a federal stimulus grant focused on
combatting sex trafficking. The broad language of the grant promoted street
prostitution arrests in order to “decrease demand for human trafficking
in the San Francisco Bay Area.”[234]

Condoms as Evidence of Prostitution

In San Francisco, notwithstanding the 1994 Board of
Supervisors resolution, condoms are used as evidence to support prostitution
arrests. This practice is not pervasive, but it does occur on a regular basis.
Naomi Akers is the executive director of the St. James Infirmary, the first and
still the only occupational health clinic offering a continuum of health care
and social services to sex workers in San Francisco. According to Akers,

Much of the sex work in San Francisco has moved to inside
locations or the internet. We don’t have a huge problem with police using
condoms as evidence of prostitution as compared to other cities, but the
problem has been increasing since about 2005. The end result has been sex
workers [are] more reluctant to take more than a few condoms at a time.[235]

Police photograph condoms in connection with a stop or an
arrest. Cyd Nova, a peer counselor for sex workers at the St. James Infirmary,
stated,

I have been a peer counselor for sex workers for three
years, and during that time numerous sex workers have told me about being
harassed for condoms and having condoms photographed as a basis for
arrest…Eight months ago I was in the Tenderloin [district] and I was with
a woman who was stopped for suspicion of sex work. She was searched and the
police photographed her condoms, I saw this. They did not end up arresting her.[236]

Lt. Fox stated that SFPD will, “on occasion,”
photograph condoms as part of a prostitution arrest.[237] “Photographs of condoms help with the ‘act in furtherance’ or
‘intent’ part of the crime, but we don’t want to confiscate
them because we are aware of the public health concerns, so we photograph
them,” Fox told Human Rights Watch.[238]

Attorneys from the city’s Public Defender Office,
however, told Human Rights Watch that the use of condoms in prostitution cases
is more than “occasional,” as the office defended at least eight
cases involving condoms as evidence of prostitution in the last year.[239]Copies of documents filed in two cases relying on condoms as evidence, including
photographs of condoms, may be found in Appendix D.

Reports about condoms as evidence in the transgender
community are mixed. Jessi Ross, outreach coordinator for St. James Infirmary,
stated that transgender sex workers in the Polk Street area have refused to
take more than a few condoms, telling her that they fear police harassment.[240]However, other people said that harassment or arrest for condoms was not
a problem. Maryanne P., a sex worker who does HIV prevention outreach to
transgender sex workers, stated,

The police harass transgenders who are in prostitution
zones, but condoms aren’t involved. They harass them anyway and move them
along whether or not they have condoms.[241]

Human Rights Watch interviews at a transgender support
group, a transgender advocacy center, and an LGBT youth health clinic resulted
in no reports of police harassment or arrest for condoms.[242]

Police in San Francisco are photographing condoms in order
to avoid destroying or confiscating them out of a concern for the public health.
But the photographs are still used as evidence, and this can have the same
effect as a deterrent to condom use. Peer counselor Cyd Nova explained,

Harassing people for condoms, photographing condoms, word
gets around. It doesn’t take a lot of incidents to make people fearful of
carrying condoms…I have a client now who won’t carry any at all for
fear of police activity. We have been working on various ways to help her deal
with her fear, like how to hide them and things like that, but as of now she isn’t
carrying any while she is working.[243]

Targeting Businesses

Human Rights Watch found that in San Francisco, police
targeted businesses such as erotic dance clubs, massage parlors, and a
transgender nightclub for anti-prostitution enforcement. In some cases this
interfered with their willingness to make condoms available on the premises.

Multiple state laws regulate and prohibit prostitution in a
commercial setting, including The Red Light Abatement Law (declaring any
premises where prostitution occurs to be a public nuisance),[244] keeping a “disorderly house” which includes prostitution,[245] and keeping or residing in a “house of ill-fame.”[246]

The Business and Professions Code Section 24200 regulates
licensing to serve alcohol in California. Prostitution is specifically
identified by this statute as grounds for revocation of a liquor license as the
definitions of activities such as those “contrary to public welfare and
morals,” “any public offense involving moral turpitude,” and
permitting an “objectionable condition on the… premises” all
include prostitution.[247] The Department of Alcohol and Beverage Control (ABC) operates with independent
police powers conferred by the Constitution of California which gives ABC the
exclusive authority to enforce these provisions and to adjudicate license
revocation cases.[248] California courts have granted ABC “broad discretion to revoke or suspend
liquor licenses ‘for good cause’ if continuing the license would be
contrary to the public welfare or morals.”[249] ABC
can make arrests for prostitution on commercial premises, and then suspend or
revoke the license of the premises on the basis of these arrests. The use by
ABC of decoy undercover agents to enforce anti-prostitution provisions has a
long history and has been consistently upheld by the courts.[250] In
addition California law strictly regulates premises where topless or nude
dancing occurs, whether they serve liquor or not.[251] Undercover agents are used routinely to enforce these regulations.[252]

In 2005, 11 erotic dance clubs in San Francisco were the
targets of a federal lawsuit alleging violation of the anti-prostitution laws.
Six individual dancers and an erotic dance club in San Francisco sued a company
that, at that time, owned multiple erotic dance clubs in the city, for numerous
labor and employment violations in the United States District Court in San
Francisco.[253] The complaint alleged, in part, that clubs owned by this company were engaging
in unfair labor practices and unfair business competition by permitting, and in
some cases encouraging, prostitution on the premises of clubs they owned and
operated in San Francisco. The dancers alleged that prostitution was encouraged
at the clubs while the competitor club claimed that its own compliance with
state anti-prostitution laws was damaging its ability to compete in the city.[254]

The pleadings filed in this lawsuit were replete with
references to condoms as evidence of prostitution activity. The complaint cited
reports from SFPD undercover agents and affidavits filed by individual plaintiffs
describing their experiences working at the clubs. These documents contained 16
references to condoms and revealed a pattern of use of condoms as evidence by
SFPD for prostitution charges at clubs throughout the city.[255]According to Naomi Akers, executive director of the St. James Infirmary,
the clinic’s outreach workers have found that some erotic dance clubs,
including some owned by this company, are reluctant and in some cases unwilling
to accept condoms for delivery to the women working in the club. In December
2008 and February 2009 outreach workers from St. James reported these incidents
to Ms. Akers in writing:

The bouncers almost did not take the outreach bag, because
of the condoms, and expressed concern that we as outreach workers were condoning
prostitution in their club… Apparently the owner… had told many [of
his] clubs to forbid outreach workers from entering the clubs.[256]

Jessi Ross, outreach coordinator for St James Infirmary,
stated that some of the erotic dance clubs continue to refuse to take condoms:

Our outreach has focused mostly on businesses in the last
year. We go in with bags of safe sex materials including condoms as well as
outreach information about the clinic and other materials…Some businesses
either won’t let us in at all or won’t take condoms because of fear
of the police. There are strip clubs where we have to take the condoms out of
the bag before they let us in to take the bags to the girls that work there.[257]

Renee K., an erotic dancer at a club included in the lawsuit,
told Human Rights Watch,

Even though it is not supposed to, sex does happen at some
of the clubs in the city, some much more than others. The clubs that serve
liquor are stricter about not letting the girls do sex work on site, and they
don’t want condoms because it would send a mixed message. You’re
not supposed to be doing that, so why have condoms around?[258]

In 2005 another San Francisco business was subject to
anti-prostitution enforcement that relied on the use of condoms as evidence.
The California Department of Alcoholic Beverage Control conducted numerous
undercover operations at Diva’s, a nightclub that welcomed transgender
clientele, making several arrests for prostitution. These arrests were then
cited as the basis for suspending the club’s liquor license on the basis
that the bartenders had failed to prevent prostitution activity at the club.
The owner appealed and the license was conditionally reinstated, but the ABC
Appeals Board opinion contains multiple references to condoms as evidence of the
bar’s complicity in permitting prostitution.[259]

Alexis Miranda, manager and show director of Diva’s
nightclub, described her response to the charges brought by ABC:

We are the only transgender-specific nightclub in
California. They [ABC] have targeted us many times in the past. When they
suspended our license, I had to go in and say ‘why is every gay bar and
every straight bar allowed to distribute condoms and we are not? Why are
transgenders promoting prostitution when we use a condom?’ I asked the
judge that.[260]

Miranda stated that ABC has not bothered Diva’s lately
and she insisted that the proceedings have not deterred Diva’s from
making condoms available on the premises: “It is not against the law to
distribute condoms, and we have not let it change our approach.”[261]

According to outreach workers at St James Infirmary,
however, Diva’s willingness to take condoms was not consistent.[262] In addition, one patron told Human Rights Watch,

There used to be condoms at Diva’s but not recently,
not on the bar or on the counters. I heard they’ve been hassled by the
cops, I’m not sure why.[263]

Massage businesses also have been the target of law
enforcement activity that included the use of condoms as evidence. In San
Francisco the Municipal Health Code establishes requirements for obtaining
permits for the operation of massage businesses, including certification of
practitioners, hours of operation, and required sanitary facilities. Although
primary responsibility for regulating massage operations lies with the Department
of Public Health, Section 1929 of the Code states that the director shall work
with the chief of police on “issues of common concern affecting the
massage industry, such as trafficking.”[264]

California’s human trafficking law prohibits false
imprisonment or violation of the personal liberty of another for the purposes
of coercive labor, sexual services, or compensation.[265]In July 2005 federal and state agents arrested 45 people as part of a
smuggling and human trafficking ring alleged to be operating out of massage
businesses in San Francisco and Los Angeles. This operation, called
“Operation Gilded Cage,” seized $3 million in illegal proceeds and
closed more than 100 Korean massage parlors in the two cities.[266]Following Operation Gilded Cage, the mayor of San Francisco, Gavin
Newsom, made targeting massage businesses for sex trafficking crimes a hallmark
of his administration. Mayor Newsom created a Massage Parlor Task Force in 2005
to unite city agencies, including the Department of Health, in a focused effort
to identify sex trafficking in the city’s massage industry. According to
the mayor’s 2009 Report to the Board of Supervisors, his administration
took multiple steps intended to “eliminate sex trafficking in San
Francisco,” including a joint city task force for monthly inspections of
massage businesses, resulting in the closing of 36 massage establishments
between 2006 and 2009. Under Mayor Newsom the city also increased civil
penalties and fines for violation of the public health codes and stepped up the
use of the Red Light Abatement Law to evict massage businesses.[267]

By 2010, 70 massage businesses had been shut down in San
Francisco, but Mayor Newsom expressed his frustration at the inability to
impact illegal activity:

It’s a bit of a whack-a-mole- as soon as you shut
down two or three here, they open up someplace else under another name.[268]

According to news reports, condoms were used as evidence by
the Massage Parlor Task Force:

All three parlors inspected Wednesday had double or
twin-size beds, authorities said. Inspectors said they had found a used condom
under a bed in one of the parlors. “You don't find ruffled beds and
condoms in real massage parlors,” said Lane Kasselman, a policy analyst
for Newsom who was along for the inspection.[269]

Naomi Akers recalled that a representative of the Massage
Parlor Task Force gave St James Infirmary a presentation on their activity:

A few years ago a police officer from the Task Force gave
us a slide show about their inspections of massage parlors, which he called
‘raids.’ He had a slide showing a picture of a bleach container
that the owners had hidden under a table, it was filled with unwrapped condoms
and he described it as evidence of illegal activity.[270]

San Francisco Police Department continues to accompany
Department of Health Environmental Health Unit employees in unannounced
inspections of massage businesses. SFPD stated that prostitution arrests are no
longer routine, and condoms are not the focus of the current inspections, which
were described as “educational and health” oriented and designed to
identify health code violations and inform potential trafficking victims of
their rights and the services available.[271]According
to Lt. Jason Fox of the SFPD, who accompanies the health department on these
inspections,

We’re very victim-oriented in our human trafficking
work. We are not looking for prostitution at the massage parlors. We want women
who might be trafficked to know they can come forward.[272]

But the legacy of the Massage Parlor Task Force is a fear of
law enforcement on the part of the massage business owners, a fear that makes
many unwilling to have condoms on the premises. A 2003 study of HIV risk among
women working at Asian-owned massage businesses in San Francisco showed that
women exchanged sex for money on the premises but that owners consistently made
condoms available on site.[273]This is not the case today. Massage business owners and employees
declined to speak with Human Rights Watch, but outreach workers who regularly
communicate with the massage parlor owners and employees told Human Rights
Watch that owners fear taking condoms due to the raids.[274]

Dr. Jeffrey Klausner, deputy health officer for the city of
San Francisco from 1998-2010, described his experience working with owners of
massage businesses:

Under Mayor Newsom’s push for anti-trafficking
enforcement, the heat on the massage parlors increased and became very public,
with the Mayor accompanying news media on the raids, and all that. I have
spoken with many massage parlor owners who have told me they fear having
condoms on the premises due to the environmental health inspections and that
they hide condoms because of this. We know that sex happens in some of these
businesses, so we need to practice harm reduction. From a public health
perspective, fear of condoms is not what we want.[275]

Response of San Francisco Public Officials

Marshall Khine, assistant District Attorney in charge of the
sex crimes unit, told Human Rights Watch that he had not heard of the 1994
agreement to refrain from using condoms as evidence. According to Mr. Khine,
the agreement, “hasn’t passed down through the generations”
of District Attorneys.[276] Mr. Khine, who stated that he prosecutes approximately 20 pimping, pandering,
and human trafficking cases per year, “may have two cases” that
involve condoms collected by police at the scene. In these cases condoms are
usually not primary, but supplemental evidence. Mr. Khine told Human Rights
Watch that he understands the public health issue with using condoms as evidence
of prostitution, but “would have to think about” whether the Office
of the District Attorney would support a prohibition on use of condoms as
evidence.[277]

The San Francisco Police Department acknowledged the
department policy to photograph condoms to support loitering for prostitution
charges. Lieutenant Fox said that the SFPD “does not want to discourage
condom use,” but was not concerned that owners of businesses where sex
might be occurring were reluctant to make condoms available:

The Department of Alcoholic Beverage Control issued the
following statement in response to an inquiry from Human Rights Watch, and
declined further comment:

It is assumed each case involving prostitution is unique.
While the display or distribution of condoms in a bar or nightclub setting may
in some case be an indicator of prostitution activity, it is also recognized by
the ABC and California law enforcement in general that such open
display/distribution is accepted among business owners in many communities for
health-related reasons, to help prevent sexually transmitted diseases. Condoms
can be purchased at drug stores, grocery stores, vending machines, gas
stations, bars and the internet, and are distributed free at many STI and HIV
clinics. However, in prostitution cases, when undercover law enforcement
officers do request sex acts and conduct money talk as part of their
enforcement work, and if the suspected prostitute has a condom as part of the
furtherance of the crime after the solicitation is made, the condom might be
used as evidence.[279]

Israel Nieves-Rivera, director of policy and HIV prevention
for the San Francisco Department of Health, was not aware of the 1994 Board of
Supervisors resolution, but expressed concern about the use of condoms as
evidence of prostitution. Mr. Nieves-Rivera stated,

We need universal access to condoms in the city so all
businesses feel comfortable and encouraged to make condoms available.[280]

Mr. Rivera stated that the San Francisco Department of
Health HIV Prevention Plan for 2012-2015 identified heavy alcohol use as one of
the primary drivers for HIV risk as it increases the likelihood that
individuals will engage in risky practices. Promoting a structural response to
this problem, the HIV Prevention Planning Council recommended passage of
legislation requiring condoms at all places that serve liquor in the city, and
proposed working with the state Department of Alcoholic Beverage Control on this
issue.[281]

With regard to the massage businesses, Mr. Nieves-Rivera
stated,

As far as the massage parlors, we believe we need a
coordinated response among the sections of the health department such as HIV
and STD prevention and Environmental Health. We also need to continue our
partnership with the SFPD, since we are all ‘public safety
officers.’ We are open to building on our success with syringe access and
meeting with the SFPD, the District Attorney, and the Human Rights Commission
to discuss this further and develop a plan. [282]

The Human Rights Commission of San Francisco is concerned
about the use of condoms as evidence of prostitution. Former Commissioner
Cecelia Chung and current Executive Director of the Commission Theresa Sparks
plan to convene an inter-agency meeting and public hearing to address the
issue.[283]

Human Rights Obligations

Right to HIV Prevention and Access to
Condoms

HIV is a potentially fatal disease, and other sexually
transmitted diseases increase the likelihood of HIV infection. Police
interference with the ability to access means of HIV prevention, whether in the
form of information from peers or condoms, impedes the rights to life and to
health and is incompatible with human rights standards.

The Universal Declaration of Human Rights guarantees to
every person the right to health and well-being as well as life, dignity, and
the right to be free from discrimination.[284]The International Covenant on Civil and Political Rights (ICCPR), a
treaty signed and ratified by the United States, guarantees to every person the
right to life, a fundamental right that is implicated in any policy that
interferes with the prevention of HIV.[285] Indeed, the treaty
has been interpreted to require states to take positive steps to curb epidemics
and other threats to the public health.[286] Police action that
undermines HIV prevention efforts by impeding condom use is incompatible with
essential protections guaranteed by the ICCPR.

The right to access condoms and related HIV
prevention services is also an essential part of the human right to the highest
attainable standard of health. The International Covenant on Economic, Social,
and Cultural Rights (ICESCR) obliges state parties to take steps
“necessary for... the prevention, treatment and control of epidemic...
diseases,” including HIV.[287]United Nations bodies responsible for monitoring implementation of the
ICESCR have interpreted this provision to include access to condoms and
complete HIV information.[288] The Committee on Economic, Social and Cultural Rights, the UN body
responsible for monitoring implementation of the ICESCR, has interpreted
article 12 as requiring “the establishment of prevention and education
programmes for behaviour-related health concerns such as sexually transmitted
diseases, in particular HIV.”[289] The
committee notes,

States should refrain from limiting access to
contraceptives and other means of maintaining sexual and reproductive health,
from censoring, withholding or intentionally misrepresenting health-related
information, including sexual education and information, as well as from
preventing people’s participation in health-related matters....[290]

According to the committee, the ICESCR not
only obliges governments to establish these programs “expeditiously and
effectively,” it also prohibits them from “interfering directly or
indirectly with the enjoyment of the right to health.”[291] Policies that frustrate HIV prevention by limiting access to condoms
fit this description. Further, ICESCR protects against discrimination in health
prevention on the basis of gender, social status, or other factors and
obligates governments to protect the health rights of marginalized members of
society. Indeed, the committee deems the right of access to health
facilities, goods and services on a non-discriminatory basis, especially for
vulnerable or marginalized groups, to be a “core” obligation
essential to the right to health.[292] In the United States ICESCR has been signed but not ratified. However, the
government is not without obligation under the ICESCR, as a signatory must
refrain from taking steps that undermine the intent and purpose of the treaty.[293]

International law also protects the right of all women to
control their reproductive and sexual health. The Convention on the Elimination
of all forms of Discrimination Against Women (CEDAW), a treaty the US has
signed but not ratified, clearly establishes the right to make informed
decisions about safe and reliable contraceptive measures, to access family
planning information, education, and “the means to enable them to
exercise these rights.”[294]

The International Guidelines on HIV/AIDS and
Human Rights, non-binding but authoritative interpretations of human rights law
applicable to HIV, address the fact that marginalized populations, including
sex workers, have experienced discrimination and been denied equal access to
HIV prevention services:

HIV prevalence has grown among groups most
marginalized, such as sex workers, drug users, and men having sex with men.
Coverage of interventions to educate people about HIV; to provide them with HIV
prevention commodities, services, and treatment; to protect them from
discrimination and sexual violence; and to empower them to participate in the
response and live successfully in a world with HIV is unacceptably low in many
parts of the world.[295]

Law enforcement agencies are charged with
enforcing anti-prostitution laws. But enforcement must be consistent with
international human rights obligations, including the right to health, which is
also an element of public safety that is the province of the police.[296] Noting that sex workers frequently suffer human rights abuses due to
the legal status of their work, the United Nations Joint Programme on AIDS
(UNAIDS) recommends,

With regard to adult sex work that involves
no victimization, criminal law should be reviewed with the aim of
decriminalizing, then legally regulating occupational health and safety
conditions to protect sex workers and their clients, including support for safe
sex during sex work. Criminal law should not impede provision of HIV prevention
and care services to sex workers and their clients.[297]

The UN Guidance Note on HIV and Sex Work references the
vulnerability to HIV infection among sex workers, a fact that “reflects
the failure to adequately respond to their human rights and public health
needs.”[298]The UN Guidance Note states,

Condoms, both male and female, are the single most
effective available technology to reduce the sexual transmission of HIV and
other sexually transmitted diseases. Condoms must be readily available for sex
workers and their clients, either free or at low cost, and conform to global
quality standards…harassment by law enforcement officers reduces the
ability of sex workers to negotiate condom use; governments and service
providers should address such factors to maximize the impact of condom
programming focused on sex work.[299]

Access to information and services for HIV prevention is
protected by article 19 of the ICCPR which is binding on the United States and
which guarantees the “freedom to seek, receive and impart information of
all kinds…”[300]The Committee on Economic, Social, and Cultural Rights has similarly
stated that “information accessibility” is an essential element of
the right to health. Some of the most effective—and indeed sometimes the
only—outreach workers for HIV prevention to marginalized people are their
peers. When laws and policies equating condoms with criminal activity interfere
with the efforts of sex workers to distribute condoms to their peers, access to
health is significantly undermined.

Police and prosecutors claimed that condoms are necessary
tools to enforce anti-prostitution laws. In legal systems everywhere, however,
rules of evidence reflect considerations of public policy. The “rape
shield laws” provide an example. These statutes, codified as Federal Rule
of Evidence 412 and in the laws of every US state, exclude evidence in a rape
trial that relates to the sexual history of the victim.[301] This
exclusion represents the determination of Congress and state legislatures that
encouraging rape victims to report sexual assault and other policy goals
outweigh any probative value of this type of testimony.[302] Similarly, evidence is regularly excluded on grounds of the physician-patient,
attorney-client, and other privileges, exclusions that have been explained by
legal authorities as reflecting “a principle or relationship that society
deems worthy of preserving and fostering,” despite the potential
probative value of such evidence.[303] Here public policy considerations include not only advancing public health and
HIV prevention efforts but also protecting the right to use and possess
contraceptive devices, a right guaranteed to every person by the US Supreme
Court as part of the fundamental right to privacy.[304]

Right to Liberty and Security of the Person and
Freedom from
Arbitrary Detention

The right to health is closely related to and dependent upon
the realization of other human rights. In addition to protection of all persons
from discrimination on the grounds of sex, race, “or other status,”
the ICCPR guarantees the rights to “liberty and security of the
person” and to be free from “arbitrary arrest or detention.”[305]The 4th Amendment to the US Constitution protects the right to be free
from “unreasonable search and seizure” by police. Broadly drawn
loitering statutes such as those in New York, California, and in the
“prostitution-free zones” in Washington, DC are problematic under
these human rights standards.[306] The circumstantial evidence that permits police to stop, search, and arrest
under these statutes (such as clothing, location, and being “known”
as a prostitute), also enables unjustified interference with lawful activity
and arbitrary and preemptive arrests on the basis of profile, or status, rather
than criminal conduct.[307]

Persons interviewed for this report testified to being
stopped and searched while doing nothing illegal, including walking home,
returning from school, and waiting for the bus. Profiling of transgender
persons as sex workers is specifically prohibited by police guidelines in both
Washington, DC and Los Angeles, but the vague and sweeping language in the
loitering and anti-prostitution statutes appear to promote this discriminatory
practice. The Yogyakarta Principles, standards endorsed by independent legal
experts from 25 countries that apply existing international human rights law to
sexual orientation and gender identity, call for an end to laws that promote
profiling and other inequality before the law:

States shall take all necessary legislative, administrative,
and other measures to ensure that sexual orientation or gender identity may
under no circumstances be the basis for arrest and detention, including the
elimination of vaguely worded criminal law provisions that invite
discriminatory application or otherwise provide scope for arrests based on
prejudice.[308]

In 2011 the United States government investigated complaints
of police profiling transgender persons as sex workers in New Orleans. The
Department of Justice reported,

We also found reasonable cause to believe that New Orleans
Police Department (NOPD) practices lead to discriminatory treatment of LGBT
individuals. In particular, transgender women complain that NOPD officers
improperly target and arrest them for prostitution, sometimes improperly
fabricating evidence of solicitation for compensation.[309]

The Department of Justice concluded that the New Orleans
Police Department “failed to implement adequate policies and provide
adequate training on how to identify and articulate suspicion based on behavior
and other permissible factors.”[310]Similar
federal oversight is required for police interactions with transgender persons
in New York, Washington, DC, and Los Angeles.

Another problematic law affects sex workers in San Francisco
and Los Angeles. California law mandates HIV testing for anyone convicted of
prostitution.[311] Mandatory HIV testing is incompatible with international human rights
standards and undermines, rather than promotes, the public health. Compulsory
testing is counterproductive as it frequently drives sex workers away from
essential public health services.[312] International guidance, including by the World Health Organization and UNAIDS,
has explicitly rejected mandatory HIV testing in all forms.[313] As
stated in the UNAIDS Guidelines on HIV/AIDS and Human Rights, these laws are
often imposed upon the most vulnerable people in society:

Compulsory HIV testing can constitute a deprivation of
liberty and a violation of the right to security of the person. This coercive
measure is often utilized with regard to groups least able to protect
themselves because they are within the ambit of government institutions or the
criminal law, e.g. soldiers, sex workers, prisoners, and men who have sex with
men. There is no public health justification for such compulsory HIV testing.[314]

A related California statute provides that when a person is
found to be HIV-positive after a prostitution conviction, their charge on a
second arrest for prostitution can be enhanced from a misdemeanor to a felony.[315]This law discriminates against people with HIV and is particularly unjust
in light of police interference with sex workers’ rights to protect
themselves from HIV infection.

Right to be Free from Cruel, Inhuman, and Degrading
Treatment or Punishment

International and domestic law prohibits abusive and corrupt
police practices including verbal harassment, humiliation, and demand of sex in
exchange for leniency. Article 16 of the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment (CAT), and article 7 of the ICCPR, both
treaties signed and ratified by the United States, protect against cruel,
inhuman, or degrading treatment in police custody.[316] Non-binding declarations adopted by the UN General Assembly, such as the UN
Code of Conduct for Law Enforcement Officials, the UN Body of Principles for
the Protection of Persons under Detention, and the UN Standard Minimum Rules
for the Treatment of Prisoners have also become universal norms by which police
behavior is evaluated.

Under the terms of these UN declarations on policing, law
enforcement officials should treat all persons with compassion and respect for
their dignity, and should not inflict, instigate, or tolerate any act of cruel,
inhuman, or degrading treatment or punishment.[317]Effective mechanisms must be established to ensure the internal
discipline and supervision of law enforcement officials.[318]Rape and sexual assault perpetrated or permitted by state officials in
detention is considered torture.[319]

Sex workers, particularly transgender women in New York and
Los Angeles, testified to multiple instances of police conduct that constitutes
cruel, inhuman, and degrading treatment and violates the right to liberty and
security of the person.[320] Police stops involving condoms as evidence frequently took place in a
context of verbal harassment, physical abuse, humiliation, and extortion for
sex both in and out of detention settings. Human Rights Watch found that for
some we interviewed, fear of further ill treatment or removal from the United
States if arrested for prostitution prevented the reporting of police abuse and
misconduct. The UN special rapporteur on issues of torture has condemned
discrimination against sexual minorities in detention, including sexual abuse
and rape, and the lack of police accountability that surrounds these offenses.[321]

In March 2011, as part of its Universal Periodic Review
before the UN Human Rights Council, the US accepted recommendation 86 of the
Council report, stating, “We agree that no one should face discrimination
in access to public services or violence based on sexual orientation or their
status as a person in prostitution.”[322]This is
the first public recognition by the US of its obligation to respect the human
rights of sex workers. Unfortunately, the testimony of sex workers and
transgender people in this report confirm that there is much work to be done
before these human rights are realized.

Recommendations

New York

To the New York State Legislature

Enact legislation to prohibit the possession of condoms as
evidence of prostitution and related offenses.

Reform or repeal New York Penal Law Section 240.37, the
statute prohibiting loitering for the purposes of prostitution as
incompatible with human rights and US constitutional standards.

New York City

To the New York City Council

Enact legislation to prohibit the possession of condoms as
evidence of prostitution and related offenses.

Enact the Community Safety Act, legislation prohibiting
and providing a remedy for profiling that disproportionately impacts
individuals and communities based on race, sexual orientation, gender
identity, and other prohibited grounds.

To the Mayor of New York City

Support legislation to prohibit the use of condoms as
evidence of prostitution and related offenses.

Issue an executive order prohibiting the use of condoms as
evidence of prostitution and related offenses by the New York City Police
Department.

Provide the necessary policy, oversight, and disciplinary
action to ensure that the New York City Police Department’s
interactions with sex workers, transgender persons, and LGBT youth in New
York City comply with human rights and US constitutional standards and are
conducted with respect and professionalism.

To the New York City Police Department

Immediately cease using the possession of condoms as
evidence to arrest, question, or detain persons suspected of sex work, or
to support prosecution of prostitution and related offenses. Issue a
directive to all officers emphasizing the public health importance of
condoms for HIV prevention and sexual and reproductive health. Ensure that
officers are regularly trained on this protocol and held accountable for
any transgressions.

Support legislation to prohibit the possession of condoms
as evidence of prostitution and related offenses.

Adopt policies, guidelines, and enforcement mechanisms to
ensure that interactions with sex workers, transgender persons, and LGBT
youth comply with human rights and US constitutional standards and are
conducted with respect and professionalism.

Adopt policies, guidelines, and enforcement mechanisms to
ensure that all stops, searches, and frisks of individuals comply with
human rights and US constitutional standards.

To the District Attorneys for the City of New York

Immediately cease using the possession of condoms as
evidence to prosecute prostitution and related offenses.

Support legislation to prohibit the use of condoms as
evidence of prostitution and related offenses.

To the New York Department of Health and Mental
Hygiene

Support legislation to prohibit the possession of condoms
as evidence of prostitution and related offenses.

Call upon the New York City Police Department (NYPD) to
immediately cease using the possession of condoms as evidence to arrest,
question, or detain persons suspected of sex work, or to support
prosecution of prostitution and related offenses. Conduct trainings and
engage in other collaborative efforts with the NYPD emphasizing the public
health importance of condoms for HIV prevention and sexual and
reproductive health.

Washington, DC

To the Council of the District of Columbia

Enact legislation to prohibit the possession of condoms as
evidence of prostitution and related offenses.

Reform or repeal anti-prostitution statutes that are
vague, overbroad, and that invite discrimination and arbitrary arrest as
incompatible with human rights and US constitutional standards.

To the Mayor of Washington, DC

Support legislation to prohibit the possession of condoms
as evidence of prostitution and related offenses.

Issue an executive order prohibiting the possession of
condoms as evidence of prostitution and related offenses by the
Metropolitan Police Department.

Support reform or repeal of anti-prostitution statutes
that are vague, overbroad and that invite discrimination and arbitrary
arrest as incompatible with human rights and US Constitutional standards.

Provide the necessary policy, oversight, and disciplinary
action to ensure that the Metropolitan Police Department’s
interactions with sex workers and transgender persons in Washington, DC
comply with human rights and US constitutional standards and are conducted
with respect and professionalism.

To the Metropolitan Police Department

Immediately cease using the possession of condoms as
evidence to arrest, question, or detain persons suspected of sex work, or
to support prosecution of prostitution and related offenses. Issue a
directive to all officers emphasizing the public health importance of
condoms for HIV prevention and sexual and reproductive health. Ensure that
officers are regularly trained on this protocol and held accountable for
any transgressions.

Adopt policies, guidelines, and enforcement mechanisms to
ensure that interactions with sex workers and transgender persons comply
with human rights and US constitutional standards and are conducted with
respect and professionalism. Ensure compliance with MPD guidelines for
interaction with transgender individuals, including those that prohibit
profiling transgender persons as sex workers.

Adopt policies, guidelines, and enforcement mechanisms to
ensure that all stops and searches of individuals comply with human rights
and US constitutional standards.

To the Department of Health of the District of
Columbia

Support legislation prohibiting the use of condoms as
evidence of prostitution and related offenses.

Call upon the Metropolitan Police Department (MPD) to
immediately cease using the possession of condoms as evidence to arrest,
question, or detain persons suspected of sex work, or to support
prosecution of prostitution and related offenses. Conduct trainings and
engage in other collaborative efforts with the MPD emphasizing the public
health importance of condoms for HIV prevention and sexual and
reproductive health.

California

To the California State Legislature

Enact legislation to prohibit possession of condoms as
evidence of prostitution and related offenses.

Repeal California Penal Code Section 1202.6 mandating HIV
testing for all persons convicted of prostitution and California Penal
Code Section 647f providing for enhanced penalties for persons convicted
of a second prostitution offense while HIV-positive as discriminatory,
unnecessary, and incompatible with human rights and US constitutional
standards.

Reform or repeal California Penal Code Section 653.22, the
statute prohibiting loitering with intent to commit prostitution, as
incompatible with human rights and US constitutional standards.

To the California Alcoholic Beverage Control Board

Immediately cease using the possession of condoms as
evidence to arrest, question, or detain persons suspected of sex work, or
to support prosecution of prostitution and related offenses. Issue a
directive to all officers emphasizing the public health importance of
condoms for HIV prevention and sexual and reproductive health. Ensure that
officers are regularly trained on this protocol and held accountable for
any transgressions.

Los Angeles

To the Los Angeles City Council

Enact legislation to prohibit the possession of condoms as
evidence of prostitution and related offenses.

To the Mayor of Los Angeles

Support legislation prohibiting the possession of condoms
as evidence of prostitution and related offenses.

Issue an executive order prohibiting the possession of
condoms as evidence of prostitution and related offenses by the Los
Angeles Police Department.

Provide the necessary policy, oversight, and disciplinary
action to ensure that the Los Angeles Police Department’s
interactions with sex workers and transgender persons in Los Angeles
comply with human rights and US constitutional standards and are conducted
with respect and professionalism.

To the Los Angeles Police Department

Immediately cease using the possession of condoms as
evidence to arrest, question, or detain persons suspected of sex work, or
to support prosecution of prostitution and related offenses. Issue a
directive to all officers emphasizing the public health importance of
condoms for HIV prevention and sexual and reproductive health. Ensure that
officers are regularly trained on this protocol and held accountable for any
transgressions.

Adopt policies, guidelines, and enforcement mechanisms to
ensure that interactions with sex workers and transgender persons comply
with human rights and US constitutional standards and are conducted with
respect and professionalism. Ensure compliance with LAPD guidelines for
interaction with transgender individuals, including those that prohibit
profiling transgender persons as sex workers.

Adopt policies, guidelines, and enforcement mechanisms to
ensure that all stops and searches of individuals comply with human rights
and US constitutional standards.

To the City Attorney of Los Angeles

Immediately cease using the possession of condoms as
evidence to prosecute prostitution and related offenses.

Support legislation prohibiting the possession of condoms
as evidence of prostitution and related offenses.

Support repeal of California Penal Code Section 1202.6
mandating HIV testing for all persons convicted of prostitution and
California Penal Code Section 647f providing for enhances penalties for
persons convicted of a second prostitution offense while HIV-positive as
discriminatory, unnecessary, and incompatible with human rights and US
Constitutional standards.

Support reform or repeal of California Penal Code Section
653.22, the statute prohibiting loitering with intent to commit
prostitution, as incompatible with human rights and US constitutional
standards.

To the Los Angeles County Department of Public
Health

Support legislation prohibiting the possession of condoms
as evidence of prostitution and related offenses.

Call upon the Los Angeles Police Department (LAPD) to
immediately cease using the possession of condoms as evidence to arrest,
question, or detain persons suspected of sex work, or to support
prosecution of prostitution and related offenses. Conduct trainings and
engage in other collaborative efforts with the LAPD emphasizing the public
health importance of condoms for HIV prevention and sexual and
reproductive health.

San Francisco

To the Board of Supervisors of the City of San
Francisco

Enact legislation to prohibit the possession of condoms as
evidence of prostitution and related offenses.

To the Mayor of San Francisco

Support passage of legislation prohibiting the possession
of condoms as evidence of prostitution and related offenses.

Issue an executive order prohibiting the possession of
condoms as evidence of prostitution and related offenses by the San
Francisco Police Department.

To the San Francisco Police Department

Immediately cease using the possession of condoms as
evidence to arrest, question, or detain persons suspected of sex work, or
to support prosecution of prostitution and related offenses, including
photographing condoms for this purpose. Issue a directive to all officers
emphasizing the public health importance of condoms for HIV prevention and
sexual and reproductive health. Ensure that officers are regularly trained
on this protocol and held accountable for any transgressions.

To the San Francisco District Attorney

Immediately cease using the possession of condoms as
evidence to prosecute prostitution and related offenses.

Support legislation prohibiting the possession of condoms
as evidence of prostitution and related offenses.

Support repeal of California Penal Code Section 1202.6
mandating HIV testing for all persons convicted of prostitution and
California Penal Code Section 647f providing for enhanced penalties for
persons convicted of a second prostitution offense while HIV-positive as
discriminatory, unnecessary, and incompatible with human rights and US
constitutional standards.

Support reform or repeal of California Penal Code Section
653.22, the statute prohibiting loitering with intent to commit
prostitution, as incompatible with human rights and US constitutional
standards.

To the San Francisco Department of Public Health

Support legislation prohibiting the possession of condoms
as evidence of prostitution and related offenses.

Call upon the San Francisco Police Department (SFPD) to
immediately cease using the possession of condoms as evidence to arrest,
question, or detain persons suspected of sex work, or to support
prosecution of prostitution and related offenses. Conduct trainings and
engage in other collaborative efforts with the SFPD emphasizing the public
health importance of condoms for HIV prevention and sexual and
reproductive health.

Ensure that the work of the Environmental Health
inspectors is coordinated with that of the HIV/STD Prevention unit on
issues of HV prevention and the importance of promoting access to condoms
in business establishments in San Francisco, including massage parlors,
erotic dance establishments, and other venues.

Support the proposal of the HIV Prevention Planning
Council for a city-wide ordinance mandating access to condoms and
lubricant in all businesses that sell liquor in San Francisco.

To the United States Government

The Office of National AIDS Policy and the federal
agencies charged with implementing the National AIDS Strategy should:

Recognize that human rights abuses are significant
barriers to HIV prevention for sex workers, transgender women, LGBT
youth, and other vulnerable groups and prioritize structural
interventions to address those abuses;

Call upon states to prohibit the possession of condoms as
evidence of prostitution and related offenses, and develop a plan to
provide guidance, technical assistance, and model legislation to
accomplish this objective;

Ensure the inclusion of sex workers and transgender women
in the efforts of the Working Group on the Intersection of HIV/AIDS,
Violence against Women and Girls, and Gender-related Health Disparities;

Ensure that HIV research and surveillance data adequately
reflects the impact of HIV on sex workers and transgender women.

The Department of Justice should investigate the treatment
of sex workers and transgender persons by police in New York City,
Washington, DC, and Los Angeles and provide ongoing review, enforcement,
and oversight to ensure that policies and practices comply with human
rights and US constitutional standards.

To the United Nations

To the United Nations Committees on Human Rights, Economic,
Social and Cultural Rights, and Racial Discrimination; the Working Group on
Arbitrary Detention; the United Nations Special Rapporteurs on the Right to the
Highest Attainable Standard of Health and Questions of Torture and Cruel,
Inhuman, and Degrading Treatment or Punishment; and the United Nations Human
Rights Council:

Call upon the United States to ensure that police and
prosecutors cease using condoms as evidence of prostitution and related
offenses.

Call upon the United States to reform or repeal overly
broad loitering statutes that invite discrimination and punishment based
on identity or status rather than criminal behavior.

Call upon the United States to protect the human rights of
sex workers, transgender persons, and LGBT youth by police, both in and
out of police custody.

Acknowledgements

This report was written by Megan McLemore, senior researcher
for the Health and Human Rights Division. The research was conducted by a team
from the Health and Human Rights Division that included advocacy director
Rebecca Schleifer, research consultant Katherine Todrys, associate Alex
Gertner, and intern Margaret Wurth. The report was reviewed at Human Rights
Watch by Joseph Amon, director of the Health and Human Rights Division, Rebecca
Schleifer, advocacy director for the Health and Human Rights Division,
Katherine Todrys, research consultant, Antonio Ginatta, advocacy director for
the US Program, Graeme Reed, director of the LGBT Program, Meghan Rhoad,
researcher for the Women’s Rights Division, Dinah Pokempner, general
counsel, and Babatunde Olugboji, deputy program director in the Program Office.
Research assistance was provided by Aretha Chakraborti, Theresa Cheng, and
Claire Gunner, interns in the Health and Human Rights Division. Production
assistance was provided by Margaret Wurth, associate, Grace Choi, publications
director, Kathy Mills, publications specialist, Ivy Shen, multimedia assistant,
and Fitzroy Hepkins, administrative manager.

Human Rights Watch gratefully acknowledges the invaluable
assistance of individuals and organizations in each of the four cities
addressed in this report.

In New York City Human Rights Watch would like to thank
Sienna Baskin at the Urban Justice Center’s Sex Workers Project, Rachel
Thomas and Sara Hahn at the Open Society Foundation Sexual Health and Rights
Project, Josh Saunders at Brooklyn Defender Services, Kate Mogulescu at the
Legal Aid Society of New York, Andrea Ritchie at Streetwise and Safe, Socheatta
Meng and Daniel Mullkoff at the NYCLU, Darius Charney at the Center for
Constitutional Rights, Mito Miller, Lorena Borjas, Juan David
Gastolomendo, the Latino Commission on AIDS, Lambda Legal, the New York
City Anti-Violence Project, Lower East Side Harm Reduction Center, FROST'D,
CitiWide Harm Reduction, the LGBT Center, Queens Pride House, the Positive
Health Project, additional members of the PROS Network, and many others
whose invaluable assistance supported this project.

In San Francisco we gratefully acknowledge the staff of the
St. James Infirmary, Carol Stuart, Dr. Jeffrey Klausner, the staff at
Trans:Thrive, and Nadia Babella and Cecelia Chung at the San Francisco Human
Rights Commission.

Appendix
A.New York City Criminal Court Prostitution Complaint Form

Appendix B.Letter from the Latino Commission on AIDS to the NYPD

Appendix D. San Francisco
Criminal Court Prostitution Complaint Form

[1] Though
African-Americans constitute just 14 percent of the US population, 46 percent
of people living with HIV are African-American, and 64 percent of new infections
are among blacks or Latinos. US Centers for Disease Control and Prevention
(CDC), “HIV/AIDS in the United States Fact Sheet,” http://www.cdc.gov/hiv/resources/factsheets/us.htm (accessed April 26, 2012).

[5] National Center for Transgender Equality and the National Gay and Lesbian Task
Force, “Injustice At Every Turn: A Report of the National Transgender
Discrimination Survey,” February 3, 2011,
http://www.thetaskforce.org/reports_and_research/ntds (accessed May 21, 2012).

[7] Urban
Justice Center, “Revolving Door: An Analysis of Street-Based Prostitution
in New York City,” 2003; Human Rights Watch, Off the Streets:
Arbitrary Detention and Other Abuses against Sex Workers in Cambodia, July
2010, http://www.hrw.org/sites/default/files/reports/cambodia0710webwcover_2.pdf;
National Center for Transgender Equality and the National Gay and Lesbian Task
Force, “Injustice At Every Turn: A Report of the National Transgender
Discrimination Survey;” Amnesty International, “Stonewalled: Police
Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender people in
the United States,” AI Index No.: AMR 51/122/2005, September 21, 2005.

[14] International Harm Reduction Association, “Global State of Harm Reduction
2010,” April 2010; United Nations Office on Drugs and Crime (UNODC),
“HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A
Framework for an Effective National Response,” October 2006.

[15]John P. May and Ernest Williams, “Acceptability of
Condom Availability in a US Jail,” AIDS Education and Prevention,
vol. 14, supp. B; Mary Sylla et al., “The First Condom Machine in a US
Jail: the Challenge of Harm Reduction in a Law and Order Environment,”
100 American Journal of Public Health, vol. 100, no. 6, June 2010, pp.
982-985; Arleen A. Liebowitz et al., “Condom Distribution in Jail to
Prevent HIV Infection,” AIDS Behavior, May 4, 2012; AIDS Foundation
of Chicago, “Condom Distribution in US Correctional Facilities and
Canada,” Fact Sheet 2011.

[16] Nevada
permits counties to regulate sex work in licensed brothels. See Nevada Revised
Statutes, sec. 244.345. Nevada law mandates that sex
workers require patrons to wear condoms in all licensed sites of prostitution.
See Nevada Revised Statutes, sec. 441A.805. Prostitution is also a federal
crime, including when committed outside of US borders. See Transportationfor Illegal Sexual Activity Act, 18 USC.
secs. 2421-2428. For a summary of state and federal anti-prostitution laws,
their enforcement, and implications for human rights, see Alice M. Miller,
Mindy J. Roseman, and Corey Friedman, Sexual Health and Human Rights: United
States and Canada, Working Paper for the World Health Organization, 2010.

[19] New
York City Department of Health and Mental Hygiene, “HIV/AIDS Among Youth
and Older Adults 2006-2010,” New York City
HIV/AIDS Surveillance Slide Sets, March 2012,
http://www.nyc.gov/html/doh/html/dires/epi_surveillance.shtml (accessed April
10, 2012).

[20] New
York City Department of Health and Mental Hygiene, “HIV/AIDS Among
Transgender Persons in New York City 2006-2010,”
New York City HIV/AIDS Surveillance Slide Sets, March 2012,
http://www.nyc.gov/html/doh/html/dires/epi_surveillance.shtml (accessed April
10, 2012). HIV surveillance among transgender persons remains incomplete due to
lack of reliable data concerning the size of transgender populations and
collection methods that have not consistently identified transgender persons as
a separate population. The CDC recently issued new guidelines for data
collection among transgender persons intended to improve completeness and
accuracy of HIV surveillance in the US for this population: CDC, Guidance
for HIV Surveillance Programs: Working With Transgender –Specific Data, 2012.

[54] Human
Rights Watch interview with Mona M., New York City, February 9, 2012. Two
transgender women of color successfully challenged their arrests for loitering
for the purposes of prostitution in New York City in 2008 (Lamot v. City of
New York et al., District Court of Southern District of New York, 08cv5300
(SDNY)) and 2011 (Combs v. City of New York et al., District Court of
Southern District of New York, 11cv3831 (SDNY)) but for the most part this type
of police profiling occurs with impunity.

[62] Human
Rights Watch interview with Juan David Gastolomendo, Latino Commission on AIDS,
Queens, New York, November 23, 2011. Human Rights Watch has documented high
rates of violence against transgender people in Honduras, South Africa, Kuwait
and other countries, see, e.g. Human Rights Watch, Not Worth A Penny: Human
Rights Abuses Against Transgender People in Honduras, May 2009,
http://www.hrw.org/en/reports/2009/05/29/not-worth-penny-0.

[78] Amnesty International, “Stonewalled: Police Abuse and Misconduct Against
Lesbian, Gay, Bisexual and Transgender people in the United States,” AI
Index No.: AMR 51/122/2005, September 21, 2005; Joey Mogul, Andrea Ritchie, and
Kay Whitlock, Queer (In)justice: the Criminalization of LGBT People
in the United States (Boston: Beacon Press, 2012).

[89] Jim
Dwyer, “Giving Away, and then Seizing Condoms,” New York Times,
April 24, 2012.

[90] PROS
Network and Urban Justice Center Sex Workers Project, “Public
Health Crisis: the Impact of Using Condoms As Evidence in New York City,”
April 2012, http://sexworkersproject.org/downloads/2012/20120417-public-health-crisis.pdf
(accessed June 19, 2012).

[92] Letter
from Human Rights Watch to Commissioner Thomas Farley, New York City Department
of Health and Mental Hygiene, May 1, 2012, detailing repeated requests for an
interview with representatives of the NYCDOHMH, including email and telephone
communications March 28, and April 3, 9 ,11, and 13, 2012, on file with Human
Rights Watch.

[93] Email
communication to Human Rights Watch from Anthony J. Girese, counsel to the
Bronx District Attorney, April 24, 2012.

[98] Human
Rights Watch interview with Lois Raff, Counsel to the Queens District Attorney
and Anthony Communiello, Chief of the Special Proceedings Bureau, Queens
District Attorney, New York City, March 27, 2012.

[100]Floyd
et al v. City of New York, District Court of Southern District of New York,
08 Civ. 01034 (SAS).

[101] Report of Jeffrey Fagan, Ph.D., filed October 15, 2010 in the case of Floyd
v. City of New York.

[102] See,
e.g. NYPD Operations Order dated October 17, 2011, attached as Exhibit 12 to
the Declaration of Darius Charney filed in opposition to defendants’
motion for summary judgment in Floyd v. City of New York. Al Baker,
“Bronx Police Precinct Accused of Using Quota System,” New York
Times, February 23, 2012; Michael Powell, “No Room for Dissent in a
Police Department Consumed by the Numbers,” New York Times, May 7, 2012.

[115] District of Columbia Official Code, secs. 22-2701 and
2701.01. Related offenses include pandering (District of Columbia Official Code, Sec. 22-2705); receiving money for arranging prostitution
(District of Columbia Official Code, sec. 22-2707);
operating a house of prostitution (District of Columbia Official Code, sec. 22-2712) and others.

[121] See,
e.g. Testimony of Stephen M. Block of the American Civil Liberties Union
(ACLU), “Omnibus Public Safety Act of 2005” presented at Council
hearing June 20, 2005.

[122] Testimony of Ariel Levinson-Waldman, senior counsel to the Attorney General for
the District of Columbia, before the Committee on the Judiciary, January 24,
2012; Testimony of Fritz Mulhauser, director of ACLU of Washington, DC, before
the Committee on the Judiciary, January 24, 2012.

[123] Alliance for a Safe and Diverse DC, “Move Along: Policing Sex Work in
Washington, DC,” p. 21; District of Columbia Official Code, sec. 2-1401.01.

[129] Written testimony of Ariel Levinson-Waldman, senior counsel to the Attorney
General for the District of Columbia, Committee on the Judiciary, DC Council,
January 24, 2012.

[130] A
legislative history of the Prostitution Free Zone Amendment Act of 2011 is
available at:
http://www.dccouncil.washington.dc.us/legislation/prostitution-free-zone-amendment-act-of-2011
(accessed July 7, 2012).

[131]Terry
v. Ohio, United States Supreme Court, 392 US 1 (1968); New York v.
Belton, United States Supreme Court, 453 US 454 (1981); United States v.
Christian, United States Court of Appeals, 187 F.3d 663 (DC Circuit, 1999).

[256] “Strip Club Outreach Report” to Naomi Akers, February 2009, on file
with Human Rights Watch. Human Rights Watch was unable to reach owners or
employees of Déjà Vu despite repeated attempts. Counsel for
Déjà Vu at the time of the lawsuit had no comment. Human Rights
Watch telephone interview with Linda Toutant, Los Angeles, April 27, 2012.

[257] Human
Rights Watch interview with Jessi Ross, St. James Infirmary, San Francisco,
March 5, 2012.

[277] Ibid.
The Assistant District Attorney in charge of prosecuting misdemeanor
prostitution cases failed to respond to Human Rights Watch’s repeated
requests for an interview. Email and telephone communications with R. Breal,
San Francisco District Attorney’s office, April 13 and 19, 2012.

[305]ICCPR, arts. 9, 26. “Sex” is increasingly
understood to encompass gender and gender identity, see, e.g. Macy v. Holder,
appeal number 0120120821, Agency Number ATF 2011-00751, April 20, 2012, a case
in which the US Equal Employment Opportunity Commission held that failure to
hire a transgender woman despite her qualifications violated Title VII of the
Civil Rights Act of 1964.

[306] In
New York City, loitering laws similar to the loitering for prostitution statute
have been struck down by state and federal courts on due process grounds. In
the case of People v. Uplinger, 460 NYS2d 514 (1983) the New York Court
of Appeals struck down a statute prohibiting loitering for the purposes of
engaging in lewd sexual conduct. In People v. Bright, 526 NYS2d 66
(1988) the New York Court of Appeals struck down a statute prohibiting
loitering in a transit facility without sufficient explanation. In Loper v.
New York City Police Department,999 F2d 699 (2d Cir. 1993), the federal
court struck down a statute prohibiting loitering for the purpose of begging.

[317]Code of
Conduct for Law Enforcement Officials, G.A. Res. 34/169, annex, 34 U.N. GAOR
Supp. (no. 46) at 186, U.N. Doc. A/34/46 (1979), art. 2; Body of Principles for
the Protection of All Persons Under any Form of Detention and Imprisonment,
G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (no. 49) at 298, U.N. Doc. A/43/49
(1988), prin. 1; United Nations Standard Minimum Rules for Treatment of
Prisoners (Standard Minimum Rules) adopted by the First United nations Congress
on the Prevention of Crime and the Treatment of Offenders, held at Geneva in
1955, and approved by the Economic and Social Council by its resolution 663
(XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, para. 26.

[319] The
UN special rapporteur on torture has stated that “rape and other forms of
sexual assault in detention are a particularly despicable violation of the
inherent dignity and right to physical integrity of every human being; and
accordingly constitute an act of torture.” United Nations Special
Rapporteur on Torture, Summary Record of the 21st Meeting, UN ESCOR, Commission
on Human Rights, 48th Session, paragraph 35, UN Doc. E/CN.4/1992/SR.21 (1992).

[320]Report of the special rapporteur on the question of
torture and other cruel, inhuman or degrading treatment or punishment, U.N.
General Assembly, U.N. Doc. A/56/156, July 3, 2001, Section IIA (finding that
fear of physical torture may constitute mental torture, and that serious and
credible threats to the physical integrity of the victim or a third person can
amount to cruel, inhuman or degrading treatment, or even to torture, especially
when the victim is in the hands of law enforcement officials). In its
2006 recommendations for the United States, the Committee Against Torture
expressed concern about reliable reports of sexual assault in detention
“and that persons of differing sexual orientation are particularly
vulnerable.” Conclusions and Recommendations: United States, CAT/C/USA/CO/2,
para. 32, May 18 2006.

[321] Report of the Special Rapporteur on the Question of Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment, UN General Assembly
E/CN.4/2002/76, December 27, 2001.

[322] US
Department of State, “US Response to UN Human Rights Council Working
Group Report,” March 10, 2011.